Brexit Transition and the Future Trade Deal: Implications for Citizens’ Rights

20 March 2018

The round-table “Brexit Transition and the Future Trade Deal: Implications for Citizens’ Rights” took place on the 20th March 2018 at the Royal Society of Edinburgh. It was organised by the Scottish Centre on European Relations and SULNE in collaboration with the Equality and Human Rights Commission (EHRC). The round-table was part of an event series on the legal consequences of Brexit and was generously funded by the EHRC.

Throughout the Brexit process, much of the attention has focused on trade models and future economic relations. At the same time, it is clear that the implications of Brexit will extend significantly beyond economics and, in particular, impact upon individual citizens in the UK and EU27. This round-table provided an opportunity to explore what the outlook for the Brexit transition and the options for a future trade relationship would mean for citizens’ rights going forward. Taking place a day after the publication of the Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Draft Withdrawal Agreement), the round-table also allowed prompt reflections on the implications of the agreement for citizens’ rights and future trade relations.

Prof Niamh Nic Shuibhne
Professor of European Union Law · University of Edinburgh

Prof Nic Shuibhne began the round-table discussion by outlining the citizens’ rights issues during the three phases of Brexit from the perspective of free movement rights. At present, rights of citizens and their family members are guaranteed by the EU law. From the perspective of things changing, Prof Nic Shuibhne highlighted two points. Firstly, EU rights are separate and distinct from national immigration rules and procedures. Immigration is based on the logic of ‘permitting’ someone to be in a country, whereas free movement in EU law is construed as a ‘right’. The distinctiveness of EU free movement rights in this regard is often overlooked, especially in media. It needs to be highlighted, therefore, that the free movement law cannot be fully replaced by immigration law. A second significant feature of the present system, according to Prof Nic Shuibhne, is the ability of citizens to enforce their rights. Citizens can themselves challenge decisions of administrative authorities directly in national courts and tribunals, with the added safety net of a reference to Court of Justice of the European Union (CJEU) for interpretation of human rights underpinning the system. As we move from the present phase to transition and post-Brexit phases, the enforcement of rights moves in many respects to the state rather than the affected individual.

Prof Nic Shuibhne went on to explore citizens’ rights during the transition phase by examining the key articles of the Draft Withdrawal Agreement. She contended that although the broad EU position has been based on two main objectives, the continuity and reciprocity of rights, the Draft Withdrawal Agreement provided for neither complete continuity of current rights nor complete reciprocity between UK and EU citizens’ rights. The draft text does reflect agreement on the ‘settled status’ procedure, for which the EU citizens should apply in the UK, and the UK objective of carrying out criminality checks on EU citizens. There are, however, contradictions in different provisions on the criminality check (compare esp. Articles 17(1)(p), 18 and 19 of the Draft Agreement).

Other important issues are dispute resolution and social security coordination in the future. Notably, according to the draft text, future amendments to social security provisions will be reflected and adopted by the Joint Committee. The two parties have also clarified to some extent who the family members of citizens are, yet there are remaining ambiguities in the text, e.g. in relation to whether they need to be family members at the time of withdrawal and the rights of EU citizens who arrive during the transition.

Prof Nic Shuibhne pointed out one of the most striking aspects of the Draft Agreement, that is the removal of Article 32 on the rights of the UK citizens from the revised draft. The UK position on this issue was that the UK citizens who already reside in the EU should retain their right to movement within the EU after transition and withdrawal. The removed draft Article 32 had prevented this by explicitly stating that the UK citizens in other MS would not retain free movement rights. This jeopardised not only the rights of workers and self-employed people but also the ability of UK citizens to provide services in other MS.

As to the third phase, referring to the post-Brexit relationship between the UK and EU, Prof Nic Shuibhne noted that a Free Trade Agreement would be the only option for the future relationship unless the UK agreed to oversight by the Court of Justice (noting the principle of autonomy of EU law) and freedom of movement (noting the ruling out of ‘cherry picking’ of aspects of the single market by EU27). FTAs provide some coverage for service providers, but they tend not to deal with immigration or visa issues, which would evoke Schengen rules on these questions. FTAs would not normally contain equal treatment provisions for natural persons. Most importantly, there would be inter-state dispute settlement mechanisms instead of direct enforcement of rights by citizens. Prof Nic Shuibhne concluded her remarks by emphasising that a FTA would overall provide the weakest form of coverage of natural persons’ rights.

Prof Michael Keating FRSE FBA FAcSS
Professor of Politics · University of Aberdeen Director · Centre on Constitutional Change

Prof Keating offered a more philosophical and political perspective on the issue of citizens’ rights post-Brexit. He started by stating at the outset that, despite the Westminster rhetoric to the contrary, the EU has complemented and facilitated the UK constitutional system. The European framework, both in the Council of Europe and the EU, has been holding together the unique constitutional system of the UK as a plurinational union based on a negotiated multiple level order with no fixed demos. A significant aspect of the European framework’s role in this has to with the issues of rights and citizenship, according to Prof Keating.

Historically, since the French Revolution, rights have been tied up with nationality. This principle, however, could not deal with our issues today in Europe or internationally and has been modified. In plurinational or multinational states, connecting rights to nationality and citizenship has a problematic nature. In Quebec, for example, some of the Quebecois had rejected the Canadian Charter of Rights as it was seen as a nationalising project introduced by the then PM Trudeau, although the Charter was almost identical to the Quebec Charter of Rights. In the case of the UK, there could have been a similar problem around the 2000s where devolution was debated, if it were not for the availability of European Convention of Human Rights or the various European instruments that could be applied in the devolved territories. A British (or the UK) Charter of Rights would not have resonated with the peoples of Scotland or Northern Ireland as much as the European frameworks have. The transnational conception of rights was enormously helpful, therefore, in overcoming the devolved concerns about human rights becoming tools of nationalisation.

Prof Keating suggested that with the looming Brexit and the proposals for the repeal of the Human Rights Act the debate on a domestic charter of rights would eventually return and raise complexities. This will be so especially due to the complex interlinking of citizenship and social rights with membership in communities, e.g. the British community, European community or the various communities that compose the UK. Much discussion so far has concerned the replacement of European frameworks on agriculture or justice and home affairs but almost none has taken place on the notion of citizenship and how that could be replaced with a common UK notion of social citizenship. Prof Keating concluded his remarks by stating that a burning question that still needs to be addressed in this context is how the rights enjoyed in Scotland could chime in with the European rights without necessarily passing through the UK system. He emphasised that this was a matter of principle, which has received scant attention so far.

Susie Alegre
International Human Rights Barrister · Doughty Street Chambers

Ms Alegre focussed in her talk on the issue of EU citizenship for British nationals, which has not so far been on the negotiating table. Much of the discussion centres around the rights of the EU citizens in the UK but the debates so far or the transition deal has not addressed the concerns of British citizens that would like to remain European citizens. Article 20 TFEU establishes a link between citizenship of EU and a MS but it remains unclear whether national citizenship is a gateway for EU citizenship or a prerequisite for continuing citizenship. The UK government has not shown interest in this question, therefore addressing it seems to rely on individuals asserting their rights or the EU Parliament raising it in near future.

Ms Alegre then explored the precedents for alternative citizenship arrangements in the EU. For example, the Isle of Man and Channel Islands are not in the EU but people who live on these islands count as EU citizens as a rule. However, those people who do not have a link to the UK have a restricted type of EU citizenship short of free movement rights, which is an exceptional scenario that applies to a small number of people. A similar arrangement is reached between Denmark and the Faroe Islands, which is not a part of the EU. There, the criterion is residency and Danish nationals residing in the Faroe Islands are not considered as EU citizens. Therefore, there have been and can be creative solutions to the link between national and European citizenship. The option of voluntary EU associate citizenship as one such solution was voiced in the aftermath of the Brexit referendum but did not receive much attention afterwards.

Ms Alegre went on to explain a recent Dutch case on the free movement rights of UK citizens post-Brexit. Recently, a Dutch court referred two questions to the European Court of Justice: 1. Does withdrawal of the UK from the EU automatically lead to the loss of EU citizenship of British nationals? 2. If not, should conditions or restrictions be imposed on the maintenance of rights and freedoms to be derived from EU citizenship? This case will lead to important legal findings, but the findings will be applicable only in relation to the UK citizens who currently reside in the EU and not to the UK citizens in the UK.

Ms Alegre concluded her remarks by arguing that there may be potential for strategic litigation with a more representative sample of individuals, especially before the European Court of Human Rights. The Court has treated citizenship and nationality as a core part of social identity as protected under Article 8. If the Court is persuaded that this also covers European citizenship, there may be a potential finding of a violation of Article 8 due to Brexit and loss of European citizenship on discriminatory grounds. Those British citizens who do not have European bloodlines or a European spouse and thus are not eligible for the various fast track procedures to acquire EU citizenship will be discriminated against during this process. This is particularly the case for members of minority groups in the UK, who do not usually have European grandparents or the financial means to invest in European countries to acquire citizenship. Therefore, Ms Alegre stated that the loss of citizenship may constitute a discriminatory interference with Article 8 rights.

Discussion

The discussion started off with a question on the missing Article 32 from the Draft Withdrawal Agreement and how the rights of British citizens could be guaranteed if it were to be replaced. Prof Nic Shuibhne reminded that the TEU itself, which is the treaty that creates EU citizenship and rights for EU citizens, makes no provision for EU citizens in Article 50. The lack of a legal hierarchy in favour of the future rights of EU citizens or a concept of acquired rights is part of the problem. She emphasised that this also raises the question of how far an agreement between the EU and a MS, which will seize being a MS the moment the treaty comes into effect, can go to protect indefinitely the rights of the citizens of the leaving state.

Ms Alegre, on the question of post-Brexit rights of British citizens, noted the lack of political will in this regard in the UK or EU27. Given that EU citizenship will likely not be part of the negotiations, she pointed to the Courts (ECJ and ECtHR) as alternative avenues for this. A good test case would revolve around the applicant’s financial reliance on the EU and having created a professional life around being European in a non-MS. She added that, alternatively, there could be fast track citizenship options available to British citizens in several MS.

Regarding the question of whether an Association Agreement might provide for a better rights framework than a Free Trade Agreement, Prof Nic Shuibhne referred to the EU agreement with Turkey as an example. The agreement does not provide an immigration framework or a right to move for workers but only confers stronger rights to Turkish citizens who work in the EU after having gone through the national immigration frameworks of MS. She emphasised that an agreement may move beyond this arrangement but the closer the arrangement becomes to free movement, the higher is the potential of triggering the jurisdiction of the CJEU. Moreover, she stated that agreeing on an immigration framework as part of any agreement would face the problem of reciprocity as the UK has stricter immigration conditions than the EU. Therefore, the EU may be unwilling to enter into an Association Agreement. Lastly, Prof Nic Shuibhne mentioned that the previous and current drafts of the Withdrawal Agreement accord protection to British citizens only if they continue to reside in the EU and that this does not capture the complexity of and mobility in our contemporary lives. This explicit exclusion of the protection of service providers in the missing Article 32 has to be rethought, therefore, given that even Free Trade Agreements provide some protection for service providers, even if not for workers.

In this context, Nina Miller Westoby (Glasgow) questioned the temptation in Brexit discussions to assume that fixing the legal conundrums surrounding free movement and citizenship problems would solve problems of all EU nationals. Free movement rules are based on a rights-based logic and host states have operated on the presumption that EU nationals have a right to be there. There are many EU nationals who have lived in the UK for extended periods despite not having, legally speaking, triggered their Treaty rights of free movement, e.g. zero-hour-contract EU nationals. Ms Miller Westoby highlighted that this point is particularly important to keep in mind in relation to the role of courts in guiding us through citizenship-related questions. MS and courts have accepted a grey area, in which movement and rights of such EU citizens operated. However, given the political climate regarding free movement, the courts have started to interfere with the enabling grey zone and held that economic activity is necessary for legal status in the UK. Therefore, solving EU free movement problems would not be helpful for EU citizens who do not meet this economic threshold. Solving EU citizenship problems does not solve problems for all either, as what the EU citizenship entails other than free movement remains ambiguous. She concluded by emphasising that the judicial dimension may split apart privileged EU citizens from the underprivileged and harm the universal language of citizenship. In relation to underprivileged EU citizens, who may have cross-border families, Ms Alegre also flagged the lack of attention to and work on judicial cooperation in family matters post-Brexit.

Dr Maria Fletcher (Glasgow) moved the discussion forward with two questions on the nature and procedure of ‘settled status’ and the retention of the EU Charter of Fundamental Rights with the Scottish Continuity Bill. In response, Prof Nic Shuibhne clarified that the ‘settled status’ is not a term mentioned in the Draft Withdrawal Agreement and used by the UK in this context. Article 17 of the Agreement provides that the “host State may require Union citizens or United Kingdom nationals and their respective family members, residing in its territory in accordance with the conditions set out in this Title, to apply for a new residence document as a condition for the enjoyment of the rights under this Title”. Prof Nic Shuibhne explained that the Agreement recognises that a host State may or may not require a new resident status but if it does, it provides for certain procedural guarantees – similar to the deportation of an EU citizen, whereby the decision to deport is a national decision but the procedure of this is determined by the EU law.

As to the retention of EU Charter of Fundamental Rights, Prof Keating stated that the Charter would then apply to devolved law and Scottish courts could look to the ECJ for precedents. Thus, European conception of rights can come into Scottish law. Ms Alegre added that the application of the Charter post-Brexit may also help the UK obtain an adequacy decision, the lack of which would have significant business implications, by ensuring that data protection and surveillance legislation in the UK conforms with the EU standards. Moreover, it will provide protection in certain areas that are not covered by the ECHR, e.g. data protection, right to a healthy environment, and workers’ rights. Lastly, Prof Nic Shuibhne warned that, despite the political significance of the retention of the Charter, legally speaking the Charter might have become a red herring in the Brexit discussions, as its guarantees are tied to the EU law and it does not have a stand-alone legal status.

Prof Keating touched upon the three main issues which have not been adequately addressed during the discussion of rights issues, especially in relation to a British Bill of Rights. First of all, there is disagreement as to whether rights should be legally entrenched. Secondly, if so, what level this should be at needs to be determined. Thirdly, the content of the rights remains contentious, especially in relation to labour rights and environmental protection. Moreover, he noted that the labour and rights standards in post-Brexit trade agreements with non-EU states may risk incompatibility with European standards. Prof Noreen Burrows (Glasgow) reminded that the European Social Charter, the WTO standards and the ICESCR will continue to apply in relation to trade-related labour and rights issues and that the EU lawyers will need to look at international law more broadly in their analyses.