Sunday, 17 December 2017

Workers Rights: the Brexit Bonfire Begins?

Professor Steve Peers, University of Essex

Parallel reports in the Sunday Times and the Sun suggest that the government is planning to scrap the EU working time Directive in the UK as soon as it can after Brexit takes effect. This violates the government’s previous pledges and is justified by highly misleading claims in The Sun.

First of all, it violates a clear pledge that Theresa May made regarding workers’ rights in her Lancaster House speech setting out her Brexit policy.  Point 7 reads:

…a fairer Britain is a country that protects and enhances the rights that people have at work. That is why, as we translate the body of European law into our domestic regulations, we will ensure that workers rights are fully protected and maintained.

Indeed, under my leadership, not only will the Government protect the rights of workers set out in European legislation, we will build on them

Secondly, it seems that this plan might be accompanied by a misleading attempt to suggest that it makes workers better off. According to the Sun headline, scrapping the Directive will allow more workers to claim overtime: “British workers set for post-Brexit overtime boom as ministers plot to scrap EU limits”.

More precisely, the article claims: “The Tories won an opt-out in 1993 but Labour MEPs voted to end the UK’s right to break the limit in 2003.” The first part of this sentence is accurate: the original Directive (amended to apply to more workers in 2000, then codified in 2003) gives each Member State the option to let workers decide to opt out individually of the usual average limit of 48 working hours a week, on the condition that they are not subject to any ‘detriment’ by the employer if they opt not to do so (see Article 22 of the 2003 version). Indeed, a study by Barnard, Deakin and Hobbs showed that as a result, the Directive had little impact on the UK’s long working hours.

However, the second part of the sentence is highly misleading. Along with the rest of the article, it gives the reader the impression that each worker’s individual opt out to work over 48 hours a week on average no longer exists. This is not true: a 2004 proposal to amend the Directive to (among other things) limit use of the opt-out failed in 2009 due to disagreements between the European Parliament and the EU Council. Employers and unions then failed to agree on amendments in 2013.

This continued use of the overtime opt-out is confirmed by a report on the Directive from the EU Commission earlier this year: 18 Member States use this option, and the UK is one of six Member States which allow workers in every sector of employment to choose to work extra hours. You can find the option in the UK’s Working Time Regulations, which transpose the Directive into UK law (it’s Regulation 5). In practical terms, a recent TUC analysis estimates that over 3 million UK workers work over the 48-hour average limit. Moreover, contrary to the implied promise of extra pay in the Sun article, many of those additional working hours are unpaid.

Thirdly, not only does the Directive not prevent workers from earning overtime pay if they choose to (assuming their employer pays them extra for those additional hours), it guarantees them important rights too. Daily working hours are limited to a maximum of 13; there must be a rest break if the working day is longer than 6 hours; workers must get at least one day off a week; and there are guarantees for night workers. There’s no possibility of opting out of these rights for workers, but there is a lot of flexibility for Member States or employers, for instance to exempt certain jobs from these guarantees or to calculate the limits over a longer period, to take account of (say) longer shopping hours in the weeks before Christmas.

Most notably, the Directive guarantees four weeks’ paid holiday every year, with no opt-outs or exceptions. It’s sometimes argued that the Directive added nothing to pre-existing UK law, but the case law on the holiday pay clause in the Directive suggests otherwise. The cases that went from the UK courts to the ECJ on holiday pay established that: fixed-term workers have a right to pro-rata holiday pay; employers couldn’t in effect reduce holiday pay by ‘rolling it up’ in each pay packet across the year; workers paid partly or wholly on commission must receive holiday pay that takes account of their average commission; holiday pay must take account of extra allowances regularly paid to workers; workers who missed holiday pay due to long-term sickness can claim that pay later, subject to time limits; but ‘gig economy’ workers who had been wrongly classified as ‘self-employed’ could claim such accrued holiday pay without any time limit.  

Put simply, far from increasing workers’ pay, scrapping the working time Directive would reduce that pay for many of them. It’s unfortunate that while most journalists aim to speak truth to power, some seem content to mislead on its behalf.

If the mooted plans go ahead, this would prove that the Conservative party’s pledge to retain all workers’ rights derived from EU law was worthless. Perhaps the government’s reported lack of integrity is unsurprising, in light of Theresa May’s promise that there would be no early election. But breaking that promise ultimately only made her own working conditions worse; breaking her promise on workers’ rights will make those conditions worse for millions of others.

Barnard & Peers: chapter 20

Photo credit: Telegraph

Thursday, 14 December 2017

(Re)constructing the employment law hierarchy of norms: The Charter will not, should not and need not apply?

Niall O’Connor, Lecturer in Law, University of Essex

The Charter and Brexit

During the Brexit referendum campaign, it was Boris Johnson who led the way in deriding the Charter’s influence over British law. In the Telegraph article in which he first threw his support behind Brexit, Johnson wrote ‘[u]nder the 55-clause “Charter of Fundamental Human Rights”, including such peculiar entitlements as the right to found a school, or the right to “pursue a freely chosen occupation” anywhere in the EU, or the right to start a business (…) These are not fundamental rights as we normally understand them, and the mind boggles, as to how they will be enforced’.

For some eurosceptics, such as Johnson, the Charter is an unacceptably powerful weapon in the EU Court’s (CJEU) arsenal, capable of over-riding national sovereignty. Any law student could point out the inaccuracy of Johnson’s perception of the Charter. Indeed, anyone could highlight the inconsistency between raising fears of the Charter’s influence while simultaneously sneering at the difficulties associated with enforcing its admittedly rather nebulous provisions. Nonetheless, the mischaracterisation of the Charter and indeed the role of the CJEU more generally has gained traction and has, to an extent hamstrung the Brexit negotiations from the outset. Particular suspicion has been directed at the Charter’s Solidarity Title (Title IV).

The Solidarity Title

Title IV of the Charter contains a number of fundamental Employment Rights, including article 27 on information and consultation, article 28 which grants workers the right to collective bargaining, article 30 which provides for the right not to be dismissed unfairly and article 31 on the right to fair and just working conditions, Collectively, these rights will be referred to as the ‘Employment Rights’, that is to say those rights that have a particularly close connection to the contract of employment rather than the broader notion of ‘social’ or ‘labour’ rights. The Charter has been praised for its inclusion of social and economic rights alongside more traditional civil and political rights, but it has always been open to question whether the Charter’s Employment Rights are, or should be, considered human rights in the first place. 

Space precludes a more in-depth analysis of the human rights pedigree of social rights but the most obvious answer to this question is that the Charter’s Employment Rights are included in a fundamental human rights document and must therefore be human rights. (See for further detail, Virginia Mantouvalou, ‘Are Labour Rights Human Rights?’ (2012) 3 ELLJ 151.) This assertion is strengthened if we look to the Charter’s Explanations, which act as interpretative guidance. We can see that a number of the Employment Rights derive from earlier fundamental rights texts such as the European Social Charter (ESC) of the Council of Europe, the European Convention on Human Rights (ECHR), International Labour Organization (ILO) Conventions, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the UN Declaration of Human Rights (UNDHR). It would seem, then, that the Employment Rights have long been considered rights worthy of international protection.

In addition, many of the arguments levelled at the justiciability of social rights generally do not apply to the Charter’s Employment Rights specifically. First, none of the four Employment Rights necessarily entail any state expenditure and do not, therefore, involve the distribution of resources, although there are likely to be costs involved for employers (including in the public sector). Second, the four rights considered have largely been fleshed out in legislation and so in this respect cannot be criticised as being vague, abstract standards. In any event, article 1 of the Charter which protects human dignity is said in the Explanations to constitute ‘the real basis of fundamental rights’. It is clear that human dignity is the value underpinning all of the Charter’s rights, including the Employment Rights.

British antipathy to the Employment Rights has a long pedigree. It has been thought that the UK had achieved an opt-out from the Charter but this notion was dispelled by the courts (NS judgment). Catherine Barnard has suggested that there is only one true UK opt-out from the Charter. (‘The Opt-Out for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?’ in Stefan Griller and Jacques Ziller (eds), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty (Springer 2008).) This is to be found in article 1(2) of Protocol 30 which provides that ‘[i]n particular, and for the avoidance of doubt, nothing in Title IV (…) creates justiciable right applicable to (…) the United Kingdom except in so far as (…) the United Kingdom has provided for such rights in its national law’. This provision serves the role of ‘making sure that if any of the provisions of Title IV are in fact classed as rights they are not justiciable in respect of the UK’.

In other words, if any of the provisions in Title IV are found to be ‘rights’ as opposed to ‘principles’ then they will not be directly justiciable in UK courts. To a large extent, even this provision may not have been necessary. Article 52(5) of the Charter already provides that the principles (which the Employment Rights are presumed to be) only lead to rights to the extent that they are implemented in EU or UK law. Article 52(1) further emphasises the rights/principles distinction, providing that rights must be ‘respected’, whereas principles must merely be ‘observed’. (See further Case C-176/12 AMS (discussed here), the opinion in Case C-282/10 Dominguez; and Case C-356/12 Glatzel).

The right has viewed the Employment Rights with suspicion, fearing that they would ‘provide the basis for a judicial assault upon the UK’s (neo-) liberal employment legislation’. (Michael Dougan, ‘The Treaty of Lisbon 2007: Winning Minds, Not Hearts’ (2008) CMLRev 617,666.) Labour lawyers and trade unionists, on the other hand, have tended to be more supportive, indeed the Labour party’s shadow Brexit minister, Keir Starmer continues to insist that the Charter should be preserved post-Brexit, with one of his six red lines for supporting the final deal being the defence of rights and preventing a race to the bottom. A consideration of the effects of the constitutionalisation of Employment Rights in the Charter shows that both views may have been somewhat misconceived.

The Consequences of Constitutionalisation

The most concrete expression of the constitutionalisation of the Employment Rights can be seen in their use as both a standard of review and as a tool of interpretation. Human rights as general principles have been used to interpret EU law from the earliest days of the Union’s existence (see Stauder). It is unsurprising, then, that it is in the interpretation of EU law that the Charter’s impact has been most keenly felt.

First, it should be noted that the CJEU has long adopted a purposive or teleological approach to interpreting EU employment legislation. A good example is the Working Time Directive (WTD). The purpose of that Directive is to lay down minimum requirements intended to improve living and working conditions. The CJEU has consistently held that the Directive must be interpreted broadly and purposively as any other interpretation would frustrate the objectives of the legislation (see Jaeger). Thus, the purposive approach was adopted long before the introduction of the Charter with its recognition in article 31 that limited working time and paid annual leave are fundamental human rights.

Since the Charter’s adoption, the CJEU continues to adopt this purposive approach, referring to the recitals and the objectives of the legislation but now simply adding the Charter into the teleological mix. (See my article, ‘Interpreting Employment Legislation through a Fundamental Rights Lens: What’s the Purpose?’ (2017) 8 ELLJ.) For example, in one recent judgment (ANGED), the CJEU starts by reaffirming that paid leave is a ‘particularly important principle of European social law’. It then notes, almost in passing, that the right is also found in the Charter. It then moves on to look at the objectives of the legislation to find that the Directive must be interpreted broadly. In other words, the effect of the inclusion of paid leave in the Charter is merely confirmatory of the conclusion the CJEU would have arrived at using existing purposive methods of interpretation.

Human rights as general principles of EU law have also long been used as a ground for reviewing not only the legality of EU acts, but also Member State acts falling within the scope of EU law. This role has now been taken up by the Charter. As there is no case law on the matter, the potential for the Employment Rights to act as a standard of review of EU legislation must be largely speculative, although the equality field provides a useful example of the Charter’s potential. In Test-Achats, articles 21 and 23 of the Charter on non-discrimination and equality were relied on to strike down EU legislation permitting difference of treatment between men and women in calculating insurance premiums. It might be that the granting of constitutional status to the Employment Rights may also have the effect of limiting the ability of the Union to adopt legislation derogating from those rights. For example, article 31 may prevent further derogation from the Working Time Directive. (In relation to article 27 see Peter Herzfeld Olsson, ‘Possible Shielding Effects of Article 27 on Worker’s Rights to Information and Consultation in the EU Charter of Fundamental Rights’ (2016) 32 International Journal of Comparative Labour Law and Industrial Relations 251.)

The Employment Rights have already been used as a standard of review of national legislation, although it is somewhat difficult to separate issues of review and interpretation. In many cases the CJEU is first asked to interpret EU legislation or the Charter before then considering the compatibility of national legislation with that interpretation. The CJEU does not have the competence to review national law directly.

Article 30 has been a weak standard of review of national law, with the CJEU usually finding that the issue is outside the scope of EU law and so the Charter is of no application (For instance, see Case C-117/14 Poclava). Article 27 has served litigants little better (see AMS, where the ECJ ruled that this Article had limited legal effect). Article 28 has been confined to considering whether rules set down in collective agreements could be reviewed for compatibility with EU law (Case C-297/10 Hennigs).

Article 31 is the Employment Right that has been most frequently invoked in the review of national legislation, although this may be a reflection of the fact that the WTD (which is stated in the Explanations to be a source of article 31) has been the subject of the most litigation. In King, the question for the CJEU was whether a worker who had been afforded a right to paid leave only part way through the employment relationship (if at all) lost that right if he did not take steps to invoke it. The UK Working Time Regulations stipulated that employees must take their paid annual leave in the relevant year or it is extinguished. AG Tanchev concluded that ‘in the light of the considerable normative weight of the right to paid annual under EU, international and Member State law, requiring a worker rather than an employer, to take steps to create an adequate facility for the exercise of paid annual leave would unlawfully make the existence of the right subject to a pre-condition’.

Overall, the influence of the Charter’s Employment Rights has represented an exercise in continuity. The extent of the Charter’s added value appears to be that the CJEU is more comfortable in relying on a written human rights text. To this extent, the CJEU has been emboldened in that its long-held approach to treating the provisions of employment legislation (most notably the concept of paid annual leave) as important social rights has now essentially been codified in the Charter, although there is a certain irony in a return to textualism to bolster a purposive approach. More democratically legitimate it may be, revolutionary it is not. (The same cannot be said of article 16 which provides for the freedom to conduct a business which has been used to radically disrupt existing approaches to the interpretation of the Transfer of Undertakings Directive. See Case C-426/11 Alemo-Herron.) Does employment law really have anything to lose, then, in the Brexit process?

The Effect on the Employment Law Hierarchy

Traditionally, the relationship between EU law and national law has not strictly been viewed as hierarchical. Rather, the interaction between the CJEU and domestic courts has been seen as one of cooperation rather than confrontation. With the enactment of the Charter, a new constitutional dimension has been added. Most civil law countries are used to conceiving of the employment relationship as consisting of a clear hierarchy of sources. This has not been true of the common law. It really makes no difference in what order the sources of labour law in the UK are discussed and the hierarchy at national level, to the extent that one can be said to exist, is capable of evolution or indeed inversion. It is useful, then, to bear in mind that there are currently a number of confused hierarchies in UK employment law (1) between EU law and domestic law and (2) within domestic law itself.

The EU-domestic hierarchy (1) can rather crudely be characterised as follows: (A) The Charter, as a constitutional human rights document sits at the pinnacle of the hierarchy of norms; (B) general EU law comes next as it must comply with the Charter but can also be used as a standard against which national law must comply; (C) this is followed by domestic law. The hierarchy at domestic level (2) (with a focus here on legislation and the common law) has never been clear and may now be in a double state of flux due to the Charter and Brexit. At domestic level (where the legislation is outside the scope of EU law), the classification of the Employment Rights as fundamental human rights in the Charter appears to have made very little difference.

The relationship between the common law and employment legislation has always been intimate. We need only think of the fact that access to protective legislation usually depends on classification as a worker or an employee, the tests for which derive from the common law. The common law has at times, therefore, had the effect of impeding access to employee-protective measures (Tanton [1999] EWCA Civ 949). By and large, this has been an entirely domestic matter, with little consideration given to the human rights nature of legislation outside the scope of EU law.

Article 30 for example, provides that the right not to be unfairly dismissed is a human right, yet the EU has not adopted comprehensive legislation governing this right. This has meant that in the context of unfair dismissal, the UK courts have been free to adopt a largely employer-friendly approach. Indeed, contrary to the CJEU’s purposive approach in the employment field, common law judges tend to exaggerate contract law tests when applied to employment legislation. (Steven Anderman, ‘The Interpretation of Protective Employment Statutes and Contracts of Employment’ (2000) 29 ILJ 223.)
In certain circumstances, however, the common law has been malleable to legislative intervention, leading to an absorption of social rights standards. A particularly good example is the common law implied term of mutual trust and confidence. It was the need to come to a definition of the constructive dismissal concept that led the courts to develop this implied term in order to modify the notion of repudiatory breach found in commercial contracts (Malik [1997] UKHL 23).

Overall then, the fact that certain pieces of domestic legislation (outside the scope of EU law) have fundamental rights implications has largely been irrelevant to the domestic hierarchy of norms. Sometimes the common law impedes social legislation, sometimes it facilitates it. What, then, are the implications of Brexit for these already unstable hierarchies?

The EU Withdrawal Bill

The UK Government has made it clear that, in its opinion, there can be no real Brexit without removing the UK from the somewhat ambiguously termed ‘direct jurisdiction’ of the CJEU although there are currently ongoing attempts from both the Labour party and a number of Conservative backbenchers to ensure that the Charter is codified in UK law. Just two weeks ago, the Government was forced to postpone consideration of the Charter’s future role. In any event, it will fall on the UK courts to take on the full range of tasks associated with the interpretation and application of (former) EU employment legislation. Clause 2(1) of the Bill provides that EU-derived legislation applicable before Brexit will continue to have effect in UK law. Clause 5(1) makes clear, however, that the principle of supremacy of EU law will no longer strictly apply, although it will, according to clause 5(2) continue to govern the ‘interpretation, disapplication or quashing of any enactment or rule of law passed or made before exit day’.

This may have continued significance for the ability of litigants to enforce their EU-derived employment rights. In Benkharbouche, workers at the embassies of Sudan and Libya were found to be entitled to have their EU-derived employment law (discrimination and working time) claims heard in a UK Employment Tribunal despite the presence of an apparent conflict with the State Immunity Act 1978. Preventing reliance on these EU rights would breach article 47 of the Charter, which guarantees access to justice. (The Charter issues were discussed more fully in the Court of Appeal ruling, discussed here).

This judgment should also remind us of the protection that will continue to be provided by article 6 of the ECHR, the Convention right to a fair trial. Lord Sumption held that ‘a conflict between EU law and English domestic law must be resolved in favour of the former, and the latter must be disapplied; whereas the remedy in the case of inconsistency with article 6 of the Human Rights Convention is a declaration of incompatibility.’ (para 78)

Echoes of this judgment could also be seen in Unison, in which the Supreme Court quashed the order introducing Employment Tribunal Fees. That judgment starts by noting that many of the rights which are enforceable before Employment Tribunals are EU-derived rights which thus engages article 47 of the Charter. That judgment is also significant for the Court’s exploration of alternative avenues to human rights protection, notably the right to access justice at common law.

The effect of clause 5(2) is to create a new category of ‘retained EU law’ that must, somehow, fit into the existing hierarchy of norms. For employment law purposes, this may not an immediate issue. Much of the existing EU employment acquis has already been implemented in domestic legislation. However, there still remain serious doubts as to the precise status of post-Brexit CJEU case law (clause 6 retains that court’s pre-Brexit case law, with more flexibility to amend that case law) and whether this can be applied or departed from by the domestic courts. Lady Hale, the newly appointed President of the Supreme Court has called for clarification in this area. Most importantly, for our purposes, the Bill is clear that the Charter will not apply.

The Charter Will Not, Should Not and Need Not Apply?

Will Not?

Clause 5(4) of the Bill provides that ‘the Charter of Fundamental Rights is not part of domestic law on or after exit day’. This presents some major practical difficulties. First, it is often impossible to pinpoint precisely the influence of the Charter in CJEU decisions. Sometimes, the Charter is front and centre in employment law decisions. In others, it is barely mentioned (if at all). In earlier cases, the CJEU may simply have been reticent in its use of the Charter, recognising the sensitive nature of social rights and grappling (as it continues to do) with the distinction between rights and principles.

 Despite the somewhat sceptical view of the Charter’s influence in this field of law outlined above, it may well be that CJEU is simply not being explicit in its use of the Charter, relying instead on existing interpretative methods, but with an eye to Charter for guidance. In any case, the Charter and employment legislation enjoy a symbiotic relationship. It has been noted that the Explanations act as interpretative guidance. The explanations to the Employment Rights refer to existing EU employment legislation. Therefore, employment legislation must be interpreted in light of the Charter which must itself be interpreted in light of that very legislation. Decoding this cycle may prove an impossible task.

Should Not?

It has been argued that incorporating the Charter into domestic law post-Brexit would be undemocratic. This is because the interpretation of the Charter rights is entirely a matter of the CJEU. Eduardo Gill-Pedro argues in a recent blog that the CJEU interprets the Charter in the light of the objectives of the Union. Once the UK leaves the Union it will no longer share those objectives and so it would be undemocratic to rely on the Charter.

I would argue that the Charter does not merely serve as an overarching political guide to the future direction of the Union. Certainly, in the employment context it has a less ambitious remit, steering as it does, the interpretation and review of employment legislation. If the Government is committed to preserving the existing employment law acquis it should have nothing to fear from retaining the Charter. In any case, stripped of its constitutional status into the future, the Charter may prove little threat to the amendment or repeal of domestic employment legislation save to the extent that the supremacy principle continues to apply on a limited basis. There would, therefore, be no ‘intrusion’ of external values into the legislative process.

Need not?

Finally, it could be argued that whether the Charter applies or not really makes very little practical difference. First, as was noted at the start of this blog, the effect of the Charter’s Employment Rights, largely dismissed as mere ‘principles’ has been somewhat disappointing. Second, and more significantly, the Repeal Bill itself which at clause 5(5) preserves fundamental rights that exist autonomously of the Charter and ‘references to the Charter in any case law are, so far as necessary for this purpose, to be read as if they were references to any corresponding retained fundamental rights or principles’.

It is clear, then, the Charter will continue to play a role in the guise of those provisions that are already reflected in the general principles of EU law (although Schedule 1 to the Withdrawal Bill will limit the legal effect of those general principles). In many areas, but notably the equality field, it was the general principles that opened the way to the application of fundamental rights in employment law, although I accept that the adoption of the Charter had an emboldening effect even prior to its granting of full legal effect. (Compare Case C-144/04 Mangold and Case C-555/07 Kücükdeveci) Although, admittedly the status of the Employment Rights as general principles remains unclear and the Withdrawal Bill makes it clear in any event that the general principles cannot act as a standard of review for retained EU law.

Separating the role of the Charter and the general principles will in any case be difficult. We need only look to Norway to see how the general principles can have an effect on those not formally bound by the Charter. The European Free Trade Association (EFTA) Court has from the outset referred to judgments of the CJEU. The ‘homogeneity’ principle has had a profound impact, leading the EFTA Court to apply CJEU decisions that post-date the EEA Agreement. (Carl Baudenbacher, ‘The Relationship Between the EFTA Court and the Court of Justice of the European Union’ in Carl Baudenbacher (ed), The Handbook on EEA Law (Springer 2016) 179, 184.)

This principle governs the relationship between the European Economic Area (EEA) Agreement and EU law. Article 6 of the EEA Agreement provides that ‘[w]ithout prejudice to future developments of case-law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of [the EU Treaties] and to acts adopted in application of [those Treaties], shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the [CJEU] given prior to the date of signature of this Agreement’. The EFTA Court has held that ‘the objective of establishing a dynamic and homogenous European Economic Area can only be achieved if EFTA and EU citizens, as well as economic operators enjoy, relying on EEA law, the same rights in both the EU and EFTA pillars of the EEA’. (Case E-18/11 Irish Bank Resolution Corporation v Kaupping para 122.) The homogeneity principle extends to fundamental rights, with the Court referring to judgments of the ECtHR and CJEU as well as AG Opinions in fundamental rights cases (Case E-2/03 Asgeirsson and Others para 23; Case E-8/97 TV 1000 para 26).

The instincts of both labour lawyers and Charter sceptics may have been wrong. Far from representing a Trojan horse, bringing in its wake alien social rights to disrupt the common law’s traditional flexibility, the Charter’s Solidarity Title has proven to be rather a damp squib, except of course that it has actually had the effect of promoting the development of a countervailing business freedom found in article 16. In AGET Iraklis, for example, the CJEU held that article 16 is closely related to the four economic freedoms contained in the EU Treaties and can be used to defeat competing employment rights. (See also Alemo-Herron)

And yet, it is possible that we labour lawyers simply expected too much from a document that was explicitly adopted to codify the existing, cautious and piecemeal approach to fundamental employment rights. And yet still, it is possible to be too sceptical. The reality is that the Charter’s Employment Rights do have the potential to act as a bulwark against legislation that might undermine the rights of workers – in particular against any attempt to lower the standard of protection for employment rights below the level established by retained EU law.

The Charter’s use as a standard of review is perhaps its most powerful function and yet, at least in the employment field, this function has yet to be fully tested. It may be that we are leaving the Charter party before it has even got started. There is no doubt that the hierarchy of employment law norms is now in a state of flux and we do not know where the pieces may fall. What we do know is that, if the UK government gets its way, the Charter will not be among them. Without the Charter, the human rights landscape in the employment field will be somewhat impoverished. Left at the mercy of the common law, it is likely that UK employment legislation will travel in an altogether more deregulatory direction.

Barnard and Peers: chapter 9, chapter 20

Photo credit: Sky News

The Security of the Status of Long-Term Non-EU Residents in the EU: Some Thoughts on Case C-636/16 López Pastuzano

Dr Diego Acosta, Reader in European and Migration Law at the University of Bristol; author of The Long-Term Residence Directive as Subsidiary Form of EU Citizenship.An Analysis of Directive 2003/109 (Brill, 2011).

When can Member States expel a third-country national (TCN) holding a long-term residence (LTR) permit and having committed a criminal offence? The ECJ engaged with this important issue in its López Pastuzano ruling on 7 December 2017. It must be recalled at the outset that, according Eurostat data, there are more than 7 million LTRs residing in the EU, with that number set to rise after Brexit. Having participated in the drafting of the written observations on behalf of the claimant before the Court, this post is a short explanation of the case and of its implications.


Directive 2003/109 (which was amended in 2011 to extend to refugees and people with subsidiary protection) provides TCNs who, as well as fulfilling other conditions, have regularly and continuously resided for five years in a Member State with a LTR status. (The UK, Ireland and Denmark opted out of the Directive) The advantages of holding such status, as opposed to a mere temporary permit, can be summarised as accessing equal treatment with nationals in a number of areas (Article 11), the conditional right to reside in another Member State (Articles 14 and 15) and the reinforced protection against expulsion (Article 12).

The ECJ has repeatedly held that the main objective of the Directive is the integration of TCNs who are settled on a long-term basis in the Member States (Cases C-502/10, Singh para 45; C-508/10, Commission v Netherlands para 66; C‑571/10, Kamberaj, para 90). Security of residence is an essential condition for that aim (in real life and in the perception of the Union legislator). If that security would be affected, the main purpose of the Directive would be undermined.

The case at hand dealt with Article 12, which fleshes out the reinforced protection against expulsion by establishing a twofold test. Firstly, Member States may expel a long-term resident “solely” when the individual constitutes an actual and sufficiently serious threat to public policy or public security (Article 12(1)); such a decision “cannot be founded on economic considerations” (Article 12(2)). Secondly, before making such decision, Member States “shall have regard to the following factors: (a) the duration of residence in their territory; (b) the age of the person concerned; (c) the consequences for the person concerned and family members; (d) links with the country of residence or the absence of links with the country of origin” (Article 12(3)).

The facts in the case

The case revolved around the implementation of Article 12 of the Directive in Spain. The claimant, a TCN holding a LTR permit, had resided in Spain since 2008, was working and in a relationship with a Spanish national. His mother and two brothers also resided in Spain. In 2014, he was condemned to a sentence of 12 and 3 months, respectively, following two criminal offences. By virtue of the Spanish Organic Law on Foreigners, in particular its Article 57(2), a third-country national can be expelled if he or she has been condemned for an offence sanctioned by prison of more than a year.

In such scenarios, the authorities cannot take into account aspects comparable to those mentioned in Article 12 (3) of the Directive. These safeguards are taken into consideration in other cases of expulsion but not in case of a prison sentence of more than one year. This national rule applies irrespective of whether the individual TCN holds a LTR permit or not.

The Ruling by the ECJ

The ECJ reminds at the outset that the main objective of the Directive is the integration of TCNs holding a LTR permit, for which they enjoy reinforced protection against expulsion (paras 23-24). The Court reiterates that it is solely when the individual constitutes an actual and sufficiently serious threat to public policy or public security that an expulsion measure might be imposed, but only after having considered each of the aspects in Article 12 (3) of the Directive (paras 25-26).

Indeed, the Directive prohibits the automatic application of an expulsion measure following a condemnatory sentence for a criminal offence, but rather it requires a case by case analysis on the elements mentioned, in particular, in Article 12 (3) (para 27). The words “in particular” are crucial here since it means that the list of elements to be assessed in each individual case in Article 12(3) is not exhaustive and that Member States must also consider other elements. This is the type of personalised proportionality assessment that the ECJ has also favoured in other recent rulings (E.g. Case C-579/13 P and S, discussed here, which concerned integration requirements for long-term residents) and that Member States need to conduct in each single case so as to fulfil their obligations under EU law. Moreover, the ECJ makes reference to its previous ruling in Ziebell (para 27) as discussed below. Spain is consequently found to be in breach of the Directive (para 29).


The ECJ did not engage in a deep analysis of which LTRs can be considered to be an actual and sufficiently serious threat to public policy or public security to begin with. However, its reference to the Ziebell case is central (para 27). In Ziebell, the Court interpreted Article 12 of the Directive on the basis of a comprehensive summary of its case law on Article 14 of EEC-Turkey Association Council Decision 1/80 (which concerns the ‘public policy and public security’ exception to the rules on residence of Turkish workers and their family members).

In brief, the same interpretation of the concept of public policy as in the area of EU nationals applies by analogy; since this is a derogation on a right it needs to be interpreted strictly; measures on grounds of public policy may be taken only following a case-by-case assessment by the competent national authorities showing that the personal conduct of the individual concerned constitutes at present a genuine and sufficiently serious threat to a fundamental interest of society.

In addition to that, the principles of proportionality and the respect for the fundamental rights of the individual, in particular, the right to privacy and family life, must be respected, and “such measures cannot be ordered automatically on general preventive grounds following a criminal conviction or as a means of deterring other foreign nationals from committing offences”. Finally, the existence of “previous criminal convictions is, in itself, irrelevant for justifying an expulsion” and “the same must hold all the more true for a justification relating to the duration of any prison terms to which the individual concerned was sentenced.”

In line with this, national courts and national authorities must take into consideration “factual matters which occurred after the final decision of the competent authorities which may point to the cessation or the substantial diminution of the present threat which the conduct of the person concerned constitutes to the requirements of the fundamental interest in question (Case C-371/08, Ziebell paras 81-84).

This protection is very similar to the one that EU nationals enjoy under Article 27 of Directive 2004/38 (the EU citizens’ Directive), if not the same. As the ECJ established in the H.T. case (C‑373/13), relating to refugee law (discussed here), whilst EU Member States “retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another … the extent of the protection a society intends to afford to its fundamental interests cannot vary depending on the legal status of the person that undermines those interests” (para 77). This has important implications for all domestic court deciding in cases where a LTR might have committed a criminal offence and when the particular application of the personalised proportionality assessment will be central in deciding the outcome of the residence of the individual or his or her expulsion.

Barnard & Peers: chapter 26
JHA4: chapter I:6

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Saturday, 9 December 2017

The Beginning of the End? Citizens’ rights in the Brexit ‘Sufficient Progress’ deal

Professor Steve Peers

Yesterday’s ‘joint report’ on the progress in the Brexit negotiations (accompanied by a Commission paper and a joint technical note on EU27 and UK citizens’ rights) amounts to an informal deal to proceed to the second phase of Brexit talks. That second phase will focus on a transition period (discussed here; and see the draft EU negotiation guidelines here) and the framework for the post-Brexit relationship between the UK and the EU.

But for now the joint report is the main issue. It’s a political document, not a legal one, but it’s practically very relevant to the formal legal process of drawing up the UK’s withdrawal agreement from the EU, as it sets out many agreed details concerning key parts of that agreement: citizens’ rights, Irish border issues, the financial settlement, and ‘winding up’ rules. Some points still need to be agreed or fleshed out; the formal legal text of the withdrawal agreement must still be drafted; and any agreement on what happens in the transition period will have to be added to the withdrawal agreement. Yet yesterday’s deal is undeniably a milestone, making it rather more likely that a final complete withdrawal agreement will be agreed.

This blog post focusses on the citizens’ rights points in the deal; I hope to return to examine the other issues in more detail soon.

Scope of the agreement

The first point to note is that citizens’ rights are reciprocal: they will cover both EU27 citizens in the UK and UK citizens in the EU27. Much of the public discussion of this issue focusses on the former but overlooks the latter; and it is arguable that as result the joint report overlooks them somewhat too. The UK has come some distance towards the EU27 position on the issues (see discussion of the parties’ earlier positions here) but there are still some elements of compromise.

The joint report indicates that the parties’ agreement does not cover all of their citizens, but only those who have ‘exercised free movement rights by the specified date’. That date is agreed to be Brexit Day (the UK had originally suggested the date of sending the Article 50 notice, but always indicated its willingness to negotiate this point). So the withdrawal agreement will apply to those resident on that date and also (implicitly) those who had previously been resident but departed briefly from the country they were living in, in accordance with EU free movement law.

More precisely, the personal scope of the agreement will be those who reside legally on the territory by Brexit Day (raising the question of how to define ‘legally’), and their family members who are defined by the EU citizens’ Directive. Those working as frontier workers on Brexit Day (as defined in EU law) are also covered. At first sight, this implicitly rules out family members who are instead covered by the free movement of workers Regulation (see, for instance, the Czop and Punakova case), as well as those who returned to a country after leaving it (so-called Surinder Singh cases; see discussion of the relevant case law here), and dual citizens, whose position is (like Surinder Singh cases) defined by analogy with the citizens’ Directive (see discussion of the relevant recent ECJ ruling here). However, the joint technical note refers more generally to those who have moved in accordance with the Treaties – suggesting instead that the final withdrawal agreement will cover such people.

On the other hand, there’s nothing to suggest that non-EU family members of British citizens who live in the UK, who are covered by the ECJ’s Zambrano case law will be covered (for further explanation of this category of people, see the discussion of the most recent case law here).

Several issues are explicitly left to later negotiation, according to the joint technical note: the further free movement rights of UK citizens living in the EU27; the recognition of post-Brexit qualifications; future healthcare arrangements (such as the EHIC card for UK citizens who visit the EU after Brexit, and vice versa); lawyers practicing under home state title; and posted workers.

Family reunion

For those who seek to be joined by family members after Brexit Day, there are limitations compared to the current rules. The current rules on admission of core family members (spouse, registered partner, children, dependent parents et al) will apply to those family members who are related to the relevant EU27 or UK nationals on Brexit Day already. For those who were not related on Brexit Day, national law will apply. This will usually be less generous, either on the UK or the EU27 side (the joint report fails to mention that 25 of the EU27 – all except Ireland and Denmark – are bound by an EU Directive on family reunion, which sets minimum standards for the admission of family members of non-EU citizens). As an exception, however, such national law will not apply to children born or adopted after Brexit Day. In short, anyone whose possible future family member’s status might be affected by the change in rules should probably start shopping for wedding rings – but can keep buying condoms if they want to.   

There’s another change relating to extended family members. Under the EU citizens’ Directive, Member States must facilitate the entry of EU citizens’ non-registered partners, as well as ‘any other family members’ who are dependents, members or the household, or being cared for by the EU national sponsor. As the ECJ clarified in Rahman, this isn’t an obligation to admit all such extended family members, but to consider applications for their admissions and justify any refusal to admit. But the joint report states that even this limited right will be curtailed, applying to partners only, not the other family members referred to. The partnership must also exist and be durable on Brexit Day; again partnerships which only start – or only become durable – after that date won’t be covered.

So the agreement will definitely lower standards that currently apply to family reunion for the persons concerned, in both the UK and the EU27. For instance, the UK has strict income requirements for the sponsors of family members, which will apply to EU27 citizens in the UK after Brexit Day, if they only married their spouse after that date. (Note that these rules will apply regardless of whether the incoming spouse is non-EU or an EU citizen; and they will also make it harder for many UK citizens to bring an EU spouse to this country). On the EU27 side, ECJ case law prohibits a high income threshold for family reunion (see the Chakroun judgment), but waiting periods before admission are possible. Discrimination on grounds of nationality will be banned, but in this context this means migrants will be treated equally badly to nationals.

Residence rights

Next, the joint report sets out agreed rules on residence status. The parties may choose to require UK or EU27 citizens respectively to apply for a new residence status under national law. This is an implicit reference to the UK intention to require all EU citizens to apply for ‘settled status’ after Brexit, although the EU27 may, if they choose, impose a parallel requirement on resident UK citizens. There are detailed rules on simplifying the application process, which in principle apply to both sides but are actually focussed on the UK side – as confirmed by the footnote referring to the recent UK technical paper on applying EU27 citizens’ rights after Brexit. The risk here is that the practical difficulties which UK citizens in the EU27 might face in transferring to national immigration status in those Member States is being ignored. And again, the EU law on non-EU citizens which is relevant for some concerned – the long-term residents’ Directive – goes unmentioned here.

In fact, I recently met a UK civil servant who admitted that the UK side is not interested in negotiating about such details, despite the UK government’s public expressions of concern for UK citizens in the EU27. The awkward fact here is that, due to the inherent reciprocity in this aspect of the talks, the UK government could not be an effective advocate for retaining UK citizens’ rights in the EU27 – because of its primary interest was in curtailing rights of EU27 citizens in the UK. For instance, it was effectively the UK government which pushed to reduce the future family reunion rights of UK citizens in the EU27, because of its desire to apply restrictive UK immigration law to family reunion for EU27 citizens in the UK in future.

The only solution here for UK citizens in the EU27 is to push for the EU side to remember their rights – either by reopening this part of the withdrawal agreement or at least by pushing for soft or hard law to be agreed within the EU27 side which clarifies their position and ensures their rights in more detail in EU Member States after Brexit.

More fundamentally, the EU27 side has conceded to the UK on the very idea of transferring to national status. There’s a grace period of two years to apply for such national status – but what happens to people who don’t apply in time? A genuine notion of ‘acquired rights’ would mean, at the very least, citizens retaining exactly the same status they had on Brexit Day; this might also extend to continuing to acquire status that was in the process of acquisition on Brexit Day.  But instead the joint report allows parties to insist on a transfer to a national status – at the UK’s behest. This (self-)imposes a significant administrative burden upon the UK, and the recent error rate of Home Office officials in dealing with EU citizens and non-EU citizens alike does not inspire confidence. And, as noted already, parallel concerns may arise wherever UK citizens are required to transfer to a national status in EU27 states.

The prospect of transferring status is moreover restricted for some by the concession to the UK of the possibility of removing people deemed to be abusing rights even before they have completed judicial redress procedures, as a derogation from existing protection. It should be noted that the ECJ has already ruled (in the 2014 McCarthy judgment, discussed here) that the ‘abuse of rights’ notion cannot be applied to EU citizens’ family members as easily as the UK government would like. But this still leaves the UK government leeway to argue that others, such as homeless EU27 citizens, are covered by the concept and so have less judicial protection once the withdrawal agreement applies.

Substantively, the joint report says that the current rules in the EU citizens’ directive will apply to residence rights and permanent residence. This leaves open the possibility of refusing permanent residence due to not having ‘comprehensive sickness insurance’ (CSI) – which in the UK government’s view means that many EU citizens who are stay-at-home parents or carers fail to qualify, since NHS coverage is not enough. Although the UK government has promised to waive this requirement unilaterally, the joint report implicitly accepts that this will not be legally binding as part of the withdrawal agreement, instead being simply the exercise of the option to apply more favourable rules than the Directive requires. The future status of these vulnerable people could therefore be changed at the whim of the UK government.

Those who already have a documented form of permanent residence will get the new national status free of charge, subject only to a security and criminality check, and verification of identity and residence. Implicitly those who are entitled to permanent residence but who do not have a document to prove it as of Brexit Day will not be protected by such guarantees. Nor will those whom the UK deems not entitled to permanent residence yet – such as the vulnerable people who don’t have CSI as interpreted by the government. It’s not clear what guarantees will apply to these people instead. 
The systematic checks on criminality would be prohibited under the citizens’ Directive, but will be allowed under the withdrawal agreement. Moreover, the substantive threshold for refusing status will change: conduct after Brexit Day will lead to immigration law consequences in accordance with national law, rather than EU free movement law.  In some cases, this will mean that offences which would not lead to denial of status under free movement law will lead to loss of status under national law.

Permanent residence rights obtained under the withdrawal agreement will, however, be retained for up to five years’ departure – rather than two years’ departure under the EU citizens’ Directive. Of course, this is in the context of the loss of the underlying free movement rights – which were previously available as a backup if the right to permanent residence was lost.

Other rights

The joint report states that UK and EU27 citizens retain rights under EU social security legislation – including the EHIC health insurance card – if they have moved before Brexit Day. There will be an agreed process (yet to be defined) on incorporating future amendments to EU social security law into the withdrawal agreement. (Usually a Joint Committee of some kind, made up of officials of parties to a treaty, is given the power to adopt decisions to amend that treaty in cases like these). 

Equal treatment as regards access to healthcare and social assistance will be guaranteed in accordance with existing EU legislation – so the limits on access to such benefits, as discussed here, will apply too. Qualifications for lawyers and other regulated professions that have been recognised before Brexit Day will still be recognised afterwards, and applications for recognition of qualifications lodged before Brexit Day will still be processed afterwards.

Enforcement of rights

The joint report states that the withdrawal agreement will go into some detail on enforcement of citizens’ rights – far more so than most international treaties. Citizens must be able to ‘rely directly on their rights’ in the agreement and have laws inconsistent with the agreement disapplied: these are implicit references to the EU law concepts of direct effect and supremacy. There’s no limit in time to these provisions.

More precisely, the UK has committed to introduce domestic legislation, which will refer explicitly to the withdrawal agreement and incorporate citizens’ rights directly in national law. This will prevail over ‘inconsistent or incompatible legislation’, unless Parliament expressly repeals the Act giving effect to the withdrawal agreement. This entrenches (but only in the specific field of citizens’ rights) the existing rule of UK constitutional law relating to the effect of EU law in the UK legal system: the European Communities Act gave the courts the (otherwise constitutionally impossible) power to set aside conflicting Acts of Parliament; implied repeal of that Act by later Acts of Parliament is not possible, but express repeal is. 

EU27 citizens may be suspicious of Parliament’s power of express repeal regarding Act giving effect to the withdrawal agreement, but it represents no change from the status quo as an EU Member State. It would be constitutionally (and surely politically) impossible to ask the UK to overrule this power, giving the withdrawal agreement some sort of super-hierarchical legal status. Subject to vague murmurings from the courts, for the UK* the only basic law is that there is no basic law.  (*except Scotland).

But what happens if the UK parliament did expressly repeal EU27 citizens’ rights? That would then be a matter for the dispute settlement provisions of the withdrawal agreement, which are likely to provide for some sort of sanction at international level in the event that, following some form of arbitration process, it is found that either side has breached its obligations under the agreement. The dispute settlement issue will be part of the ‘governance’ aspects of the withdrawal agreement, which have yet to be agreed; but the joint report explicitly notes that the aspects of citizens’ rights agreed so far is ‘without prejudice’ to the further discussion of such issues.  Ideally there will be some sort of at least indirect access by EU27 and UK citizens to this dispute settlement process, for instance by means of a complaint and request to trigger that system that has to be considered and answered by the UK or EU authorities.

As for the EU27 side, the joint report states simply that the withdrawal agreement will bind the EU and its Member States in accordance with the Treaties. This does not as such give effect to the withdrawal agreement in the domestic law of the EU and its Member States, but it is probably assumed that the withdrawal agreement will have direct effect in EU law. ECJ case law suggests that some international treaties have direct effect in EU law, but some do not, depending on the nature and purpose of each agreement.

By comparison with Demirel, where the ECJ accepted direct effect for the EU/Turkey association agreement that conferred fewer rights and did not guarantee reciprocal direct effect on the Turkish side, the withdrawal agreement is very likely to satisfy the test for direct effect in EU law. But for the avoidance of any doubt – and to ensure reciprocity from the outset – the withdrawal agreement should explicitly set out both parties’ intention to secure direct effect and supremacy of the citizens’ rights rules in their respective legal orders (on the relevance of the parties’ intentions, see Kupferberg).

Jurisdiction of the ECJ

It would be possible to leave it to the courts of each side to guarantee rights established by the withdrawal agreement, particularly in light of the strong provisions on enforcement of those rights in domestic legal systems. However, the EU27 side was particularly keen to ensure some continuing role for the ECJ.

There are several aspects to the ECJ’s role. First of all, where the withdrawal agreement refers to concepts of EU law – and the joint report indicates that it often will – those concepts will be interpreted in accordance with ECJ case law delivered before Brexit Day.  This is consistent with the EU Withdrawal Bill before the UK Parliament (discussed here), although that Bill also provides that the UK Parliament, executive or Supreme Court might decide to depart from such ‘retained’ case law. As discussed further above, the parties have agreed to limit such departures as regards the status of EU27 citizens in the UK.

There’s no limit in time to the obligation to rely on this pre-existing case law, and doing so will ensure greater legal certainty. For instance, there will be no need, to litigate from scratch how to define an EU27 or UK ‘worker’ or when a relevant family member is ‘dependent’, since there is ECJ case law to rely upon (for instance, see here and here respectively).

Secondly, the joint report states that the UK courts will have to have ‘due regard’ to ECJ judgments issued after Brexit Day. This goes further than the UK’s Withdrawal Bill, which would only give an option to courts in the UK to take account of the ECJ’s post-Brexit case law; although (as discussed here) the UK government had previously signalled its willingness to agree to such an approach as regards civil law. Again, there’s no limit in time to this obligation.

Thirdly, the withdrawal agreement should specify that courts or tribunals in the UK could ask the ECJ to rule on a provision of the withdrawal agreement concerning citizens’ rights, if there is no clear case law on the issue, if the litigation brought (presumably before a court in the UK) within a period of eight years after the ‘date of application’ (a concept not further defined) of the citizens’ rights part of the agreement. Note that this differs from the current rules in that the UK Supreme Court will not be obliged to send questions to the ECJ; although it retains the current rule that any other national court or tribunal may do so. The joint report does not state that the ECJ’s rulings in such cases will bind the national court, although the ECJ has made clear that whenever it has jurisdiction, even as regards non-EU countries, its rulings must be binding (see Opinion 1/00, for instance).   

Fourthly, in common with some other international treaties which the EU has signed, there will be an exchange of case law between the two sides, and the right of intervention of the UK before the ECJ. Unusually, there will be a parallel right of the Commission to intervene before UK courts and tribunals.

Finally, the UK will set up an ‘independent national authority’ to monitor the implementation of this part of the withdrawal agreement, with the details to be discussed further in the next phase. It remains to be seen whether it will have the same power as the Commission has on the EU27 side to consider complaints from individuals and to bring proceedings in the courts in the UK to enforce EU27 citizens’ rights. There’s no time limit on the final two points.

Taken as a whole, these provisions are remarkably similar to the rules set out in the Treaty establishing the European Economic Area, which links Norway, Iceland and Liechtenstein to EU internal market law and some other EU policies. Most notably, the rules on previous and subsequent ECJ case law are identical, as are the rules on exchange of case law and judicial intervention (if we substitute the courts in the UK for the EFTA Court). It’s not yet clear if the UK ‘independent authority’ will be as similar to the Commission as the EFTA Surveillance Authority is, but its very existence is a step in the direction of the EEA model.  And the joint report goes further than the EEA in requiring that UK courts must be able to ask the ECJ questions (the EEA only gives EEA states an option to allow this – but then it provides for an EFTA Court instead of the ECJ). While this ‘one-country EEA’ model will only (for now) apply to the specific field of EU27 citizens’ rights, it might end up as a template also for the transitional rules and future relationship which the UK and EU27 will discuss next.


Some have suggested that any ‘special’ rights for EU27 citizens in the UK are objectionable, comparing them to the status of colonial occupiers or to the application of US gun laws in the UK. These comparisons are frankly absurd. The joint report refers only to retaining some aspects of a pre-existing immigration status. To compare keeping legally acquired status (again, reciprocally for UK citizens in the EU27) to the position of an invading power’s citizens is beyond offensive; to compare it to a foreign country’s violent constitutional quirks is simply random. And citizens of the UK’s former colonies may recall that Britain exported to them not only railways and parliaments, but also famines and massacres.

Moreover, to the extent that the joint report states that the withdrawal agreement will guarantee the acquired rights of EU27 and UK citizens’ rights, it only gives effect to what many Leave supporters purported to advocate during the referendum. In particular, a Daily Telegraph article by Leave campaigners (widely disseminated during the referendum) asserted that international law would automatically guarantee full acquired rights for UK citizens living in the EU27 states. The official Leave campaign likewise promised to guarantee ‘no less favourable rights’ for EU27 citizens in the UK. These outrageous guarantees had been promised by the very people now outraged by them. 

From the opposite perspective, many EU27 and UK citizens are disappointed by the joint report. For those UK citizens who haven’t moved within the EU and who are dismayed by the thought of losing free movement rights, their complaint lies with the UK government, which assumed that the Leave vote was a vote to end the free movement of persons. For those who complain that people born in Northern Ireland will have EU free movement rights (due to their Irish citizenship) whereas most people born in the rest of the UK will not, the situation is created by Irish citizenship law; the withdrawal agreement will only recognise the existence of that rule, not create it. Of course, the distinction between UK and Irish citizenship will matter more after Brexit; but that simply brings us back to the UK government’s intention to end free movement.

As for those who have moved, there are parts of the joint report that should be welcomed, and parts where they have good grounds for concern. While the joint report does not itself create rights, that was inevitable given that the parties have decided not to ‘ring fence’ the citizens’ rights issue in a separate treaty. UK and EU27 citizens should keep lobbying for this to take place, as it would especially be necessary if the Article 50 talks subsequently collapse, as they still might (though this now seems rather less likely).

As to the substance of rights, a number of key guarantees ensuring many aspects of acquired rights will be retained are set out in the joint report. There are many important provisions on the administrative process and enforcement of rights too.

However, there are grounds for concern, as I discussed above, about the most vulnerable: the homeless who will lose effective appeal rights and the carers whose rights will depend on the fragile goodwill of the UK government – a whim which could change overnight in response to some angry vomit spewed by a tabloid newspaper. UK citizens in the EU27 are in limbo as regards future free movement rights; and because the UK government values an irrational migration target more than the family lives of working-class British citizens who fall in love with foreigners, the future family lives of lower income EU27 citizens must equally suffer.

While many EU27 citizens in the UK might prefer to keep the role of the ECJ indefinitely, there are a number of other enforcement guarantees for them in the withdrawal agreement that are not subject to any time limit. Any ECJ link with the courts of a non-EU country for any period of time is already exceptional. While the behaviour of the Home Office sometimes gives rise to understandable doubts, by definition a rule of law problem cannot be solved by demanding another court – especially a foreign court whose rulings will provoke greater opposition from nationalists than a domestic court. It needs to be solved by making the case for the rule of law – and the substantive case for EU citizens’ acquired rights – at the domestic level, coupled with an effective dispute settlement system if necessary at the international level.

Overall, the value of yesterday’s agreement also lies in the increased prospect that there will be a final deal on these issues at all – since ‘no deal’ could well leave them worse off than this planned compromise.  But it is not too late to advocate for improvements that would more fully ensure that the millions of UK and EU27 citizens who moved before Brexit Day will not have their lives ruined as a result of the Brexit process.

Barnard & Peers: chapter 13; chapter 27

Photo credit: vice sports

* *This blog post was supported by an ESRC Priority Brexit Grant on 'Brexit and UK and EU Immigration Policy'