L4PV Briefing Paper 1: Human rights and citizenship
This briefing looks at how leaving the EU without a deal would violate human rights and common law protections. It would also violate family law rights, leaving Britons in the EU as well as EU citizens in the UK, in an exposed position.
1. No Deal and the right to life
In November 2018, Matt Hancock, currently Health Secretary, refused to rule out the risk of deaths from medicine shortages if the UK crashes out of the EU without a deal. In addition, the Commissioner of the Metropolitan Police, Cressida Dick, has accepted that the public will be put at risk and the Home Office has warned of a possible breakdown in law and order. It has been suggested that in order to safeguard lives, troops might have to be brought in.
In towns across Northern Ireland, even a heightened police presence may not be enough to prevent large-scale violence and disorder, in the event a No Deal exit resulted in the erection of a hard border between Northern Ireland and the Republic of Ireland. This could constitute a threat to life.
Furthermore, the implementation of austerity in the UK between 2010 and 2019 has led to an increased reliance on food banks. This could spread further since the UK government has been unable to rule out disruption to the supply of food in the immediate aftermath of a No Deal departure. To be denied access to affordable and adequate levels of food could impinge upon the right to life, particularly in the case of vulnerable individuals.
The government knows that there is a real and immediate risk to life involved in pursuing a No Deal Brexit. As a matter of the UK’s constitutional framework, No Deal should simply be off the table – it breaks the law.
Right to life cases could end up before the European Court of Human Rights. The Court can apply interim measures to protect the right to life in a situation of imminent risk of irreparable harm. The UK government would have no choice but to accept the ruling and to implement these measures.
In addition, in the event of a death, public inquiries and inquests can be conducted under the aegis of Article 2 of the ECHR. This is commonly called an ‘Article 2 inquest’. It is wider in scope than a normal inquest and can look more broadly at the circumstances surrounding the person’s death. Such inquests have wide-ranging investigative scope and would expose the illegality of the deliberate pursuit of No Deal.
These rule-based procedures are the antithesis of the “by all means necessary” approach to Brexit propounded by the Johnson government. Such legal principles will not stop Brexit, yet they should be of real significance to all those who will have to weigh up difficult political choices and who are also concerned with upholding the rule of law.
2. No Deal and the impact on other human rights
The cliff-edge disentangling of a 40-year regulatory relationship without a transition period, will have serious effects on due process rights, which in turn may impinge upon other human rights. For example, in a No Deal scenario, the European Arrest Warrant (EAW) would cease to apply after the UK had exited the EU.
Under the framework of the EAW, the UK has several measures in place to prevent the extradition of individuals to other EU member states, where they may face the risk of inhuman or degrading treatment. These measures were introduced because the principles of mutual recognition and the free movement of judgements, require the automatic recognition of a judgement in another member state and the extradition of the individual to the member state in question. The inadvertent result of the automatic recognition of an extradition judgement in another member state could sometimes be the extradition of an individual to an EU member state where the prison conditions and standards of law may be inferior to those of the UK.
However, in 2014, the UK introduced safeguards into its domestic law to protect those facing extradition under the EAW.
These included a proportionality test and a ‘trial readiness’ requirement, which are currently included in Part I of the Extradition Act, which governs extradition within EU countries under the EAW.
If the UK leaves without a deal, extradition to EU countries will be governed by the same set of rules which governs extradition to non-EU countries. These rules, contained in Part II of the Extradition Act, do not have the same safeguards as the current arrangements introduced in 2014. In the event of a No Deal exit, the UK will be free to negotiate a new extradition agreement with the EU. However, because of the nature of the EU legal framework for negotiating agreements with third states, such an agreement could take years to negotiate.
Operating under Part II of the Extradition Act could mean substantial delays for individuals seeking justice. In addition, there is an increased possibility that individuals might be extradited to countries in which they may face inhumane and degrading treatment.
3. What does the law say?
Under the Human Rights Act, which incorporates the fundamental rights and freedoms of the European Convention on Human Rights (ECHR) into UK law, the UK’s international treaty obligations and the common law, the UK government cannot take measures or fail to take measures, if this would risk citizens being exposed to life-threatening situations.
Under Article 2 of the ECHR, the UK has an express obligation to protect the lives of its citizens. The UK remains bound to the ECHR regardless of its relationship with the EU - the two organisations are quite separate. This includes the obligation to either take acts, or in some cases to omit to take acts, that lead to a risk of the loss of life.
The Article 2 ECHR right explicitly protects the right of access to essential medical treatment. If, as currently appears to be the case, the UK government has failed to take steps to guarantee sufficient medical supplies to ensure that people will not die as a result of the delays in the transport of medicines foreseeable in a No Deal scenario, leaving the EU with
No Deal would infringe the ECHR.
In the event that the government is unable to ensure the timely supply of vital medicines to patients, there are also a variety of issues which engage other human rights in addition to the right to life, For example, where an individual is suffering from a non-life threatening disease or illness, he or she is still likely to require the continuous supply of medicines to treat the condition. An interruption to the supply of medication might result in pain and suffering sufficient to meet the minimum threshold to engage the Article 3 ECHR (the prohibition of inhuman or degrading treatment). The right would be engaged if petitioners could show that the UK government knew that No Deal would have consequences that would, in effect, amount to inhuman, cruel or degrading treatment.
The recently leaked Operation Yellowhammer documents forecasting what No Deal could look like, demonstrate that the government is aware of the possibility of patients suffering due to interruptions to the transport of medicine.
If the UK government were to refuse to implement a ruling by the European Court of Human Rights (ECHR), such a blatant disregard for the rule of law would also violate domestic law. Article 6(1) of the Human Rights Act states that it is unlawful for a public authority to act in a way which is incompatible with a Convention Right.
Similarly, as regards extradition proceedings in the event of No Deal, where extradition could result in a risk of a prisoner suffering inhuman and degrading treatment, Article 3 of the ECHR would also be engaged. Moreover, because extradition proceedings to EU member states would take far longer under Part II of the Extradition Act than under the framework of the EAW, the UK might also violate its obligations under Article 6 of the ECHR. Article 6 guarantees an individual’s right to a fair and public hearing within a reasonable amount of time.
4. No Deal and family and private life rights
The UK’s membership of the EU has not only come with free movement of people, but also the “mutual recognition” of judgements which means that court decisions in one state are automatically recognised and enforced in another state, with a few exceptions.
This efficiency of judicial application is especially important in family law matters where the UK has become part of an EU regulatory framework that helps international families to resolve disputes involving more than one EU state. In particular, this regulatory framework:
a. provides rules to determine which court is responsible for dealing with matrimonial matters and parental responsibility in disputes involving more than one EU member state
b. simplifies the enforcement and recognition of court decisions between EU member states
c. provides for a procedure in child abduction cases where a child has been abducted and brought to another EU member state
d. facilitates the payment of maintenance claims in cross border situations
A cliff-edge Brexit risks the UK stepping out of this integrated regulatory framework without concrete alternatives in place. This would be a retrograde step, in which the real-life victims will be thousands of families who have built up lives across borders.
5. What are the consequences?
The family and private life rights of UK and EU nationals risk being violated en masse, and it will be children who bear the brunt of such a radical dismantling. For example, under the current ‘Regulation on the mutual recognition of protection orders’, enforcement orders to protect victims of domestic violence or harassment are directly and automatically recognised by all other EU member states. This means that, at present, if you benefit from a civil law protection order issued in your state of residence, you can invoke it directly in other EU states, by presenting a certificate to competent authorities certifying your rights.
In a situation where UK courts would no longer recognize a certificate issued by an EU member state, the time taken and the costs involved in processing a separate civil claim, could have serious adverse effects on all parties involved. The consequence of the deliberate pursuit of a No Deal policy would be that any government would no longer be able to protect its citizens from irreparable harm. A deal would have addressed many of these problems.
Such procedural issues would also infringe the right to fair trial. The right to fair trial requires courts to issue enforceable decisions within a reasonable period of time. The legal vacuum caused by No Deal and the resultant risk of irreconcilable judgements (where two court judgements conflict with another as regards the legal reasoning), where previously a judgement would in most cases have automatically been recognised by another member state, would cause substantial delays and mean that families would not have recourse to an implementable remedy within reasonable time and cost.
6. Britons abroad and EU citizens in the UK in the event of No Deal
In 2017, according to United Nations estimates, there were 1.3m UK citizens living in other EU countries. This figure includes the Republic of Ireland. Other official UK estimates put the number of UK nationals living in other EU countries at 784,900 (excluding Ireland). Seven out of ten Britons in Europe live in Spain, France and Germany (excluding Ireland).
There are disputes over these numbers as registration has not been compulsory and numbers are likely to be higher if non-registered individuals are included. Almost three quarters of these UK citizens are below the age of 64. Therefore, the majority are working and are not retirees. Nonetheless, hundreds of thousands of UK nationals living in other EU member states are reliant on pensions and reciprocal access to local healthcare.
7. The indivisibility of EU citizenship rights
All UK nationals who live in other EU member states are reliant on their rights as EU citizens. In practice, EU citizenship rights are not divisible. i.e. it is not possible to remove any one of these rights without the operation of the others being affected.
For example, for many, the right to residence will be worthless without the right to work, to receive equal treatment as a national of the relevant country, to be self- employed, to own and run a company, or even to commute across an EU border.
For others, particularly those who have retired, the continued right to receive reciprocal cross-border healthcare, and of course an index-linked state pension from the UK, will obviously be the biggest and most worrying issues.
EU law will offer some protection to those UK citizens who have been long term residents in an EU country as they transfer to being considered as “third country nationals” after Brexit, but only if they have sufficient means.
8. Mutual recognition of professional qualifications
UK professionals working in other EU member states rely on EU mutual recognition agreements to be able to practice their professions. Acknowledgement of qualifications falls away upon a No Deal Brexit, as it will bring an end to mutual recognition. In Italy, for example, under Italian regulations an architect or a doctor would have to complete a three-year course in order to re-qualify. This demonstrates the inter-connectedness and indivisibility of EU citizenship rights - a right to residence would not help the hypothetical doctor or architect as they would not be able to maintain themselves and/or their family.
9. Healthcare and social security
Similarly, consider the case of a British pensioner living in Spain who is entirely dependent on a state pension. According to a House of Commons Library Briefing, pensions of UK residents in the EU may no longer be automatically uprated after Brexit.
In addition, If the pensioner becomes ill and is no longer entitled to healthcare under the Spanish system, then the pension itself is insufficient and a right of residency in such a situation becomes meaningless.
In the event of No Deal, the UK government has only offered to uprate pensions until 2020. Pension and social security arrangements would depend on bilateral agreements that would have to comply with the EU directives on the status of third-country nationals vis-à-vis UK citizens. As a result, UK pensioners in the EU will be left in a legal limbo and at risk of impoverishment unless they begin to work again. If rights, particularly healthcare rights, are diluted or vanish entirely from one day to the next, individuals and families will be forced into making life-changing choices.
10. The return of thousands of UK pensioners and professionals to the UK?
Thousands of UK pensioners, unable to afford healthcare and finding their pensions reduced after 2020, may be forced to return to the UK. Those who return will not only be worse off, they will also add to the demands on the NHS and social services.
Movement may also be forced on professionals. Many of them have spent years developing the necessary qualifications and linguistic skills to be able to practice their professions in another EU member state. This will have knock-on effects as businesses, such as law firms, who rely on lawyers who are cross-border qualified to be able to carry out their businesses.
At the moment, UK citizens can apply for temporary residence in the Netherlands in the event of No Deal and in Germany they will be exempt from requiring a residency title for the first three months after the withdrawal date. The Spanish government has said that the rights of UK citizens are secure, as long as the same arrangement is offered to Spanish citizens living in the UK. France has also said it would guarantee residence, employment and welfare rights of UK residents if French expats receive the same guarantees.
However, this does not resolve the issues explored here. The rights of UK citizens are not divisible and will not be safeguarded at the EU level. The rights of UK nationals in the EU, in the event of No Deal, will be piecemeal, temporary and country specific.
The dialogue between the UK and EU member states on the subject of citizens' rights, in the event of No Deal, has focused on reciprocity. Therefore, the lack of clear long-term legal safeguards may bring about a damaging upheaval for retirees and professionals, even where employment, residence and welfare rights have been granted.
The French and Spanish demands for reciprocity also point to the bruising and interminable nature of negotiations about the future of the relationship between the UK and the EU, which the UK government faces in the event of No Deal outcome. Such negotiations would no longer be limited to a bilateral negotiation between the UK and the EU but could involve the demands and conditions of each individual EU member state.
11. EU citizens in the UK
The UK government has said that in a No Deal scenario, EU citizens and their family members lawfully residing in the UK, will be able to continue to access in-country benefits and services on "broadly" the same terms as now.
Currently EU citizens can apply for pre-settled or settled status. Settled status requires five years of continuous residence and gives the individual an indefinite right to remain, during which time they can apply for citizenship. Pre-settled status gives applicants a limited time to remain in the UK of five years, during which time they must apply for settled status. EU citizens can only apply for pre-settled status if they are resident in the UK before the withdrawal day.
Moreover, the UK government has pledged to end free movement the day after exit day, i.e. the 1st November under the current framework. This will create chaos on the border as EU nationals who are eligible for settled status, but who need to travel frequently between the UK and the EU will find it difficult to do so. Under the Withdrawal Agreement, EU free movement rights would have continued during the transitional period.
Under the Withdrawal Agreement, EEA and EU nationals could use their EU passports or identity cards to prove their right to rent accommodation and to work. There is no such agreement with a cliff-edge, No Deal Brexit, just uncertainty.
12. The problems
Many of these above-mentioned protections for citizens are only contained in secondary rather than primary legislation. This secondary legislation can be easily altered by further primary or secondary legislation. Of greater concern is that much of what is recorded about EU citizens’ rights is found not in primary or even secondary legislation, but in government policy documents and explanatory notes. These may well reflect the government’s current intentions on the rights of EU citizens, but they do not provide certainty as to future arrangements.
For example, the government has stated that it intends to institute regulations under clause 4 of the Immigration Bill to protect the rights of EU citizens resident in the UK before exit day. But we do not yet know what these regulations will say because, as mentioned above, the Bill granting the power to make these regulations has not yet been passed. It is not known when it will become law.
The commitment that: EU citizens and their family members lawfully residing in the UK will “be able to continue to access in country benefits and services on broadly the same terms as now” is only included in the government policy paper on citizens’ rights. There is neither certainty nor clarity as to what "broadly the same terms as now" means in reality.
13. Goodwill is not a substitute for enforceable legal protections
The Brexit landscape changes daily and goodwill towards EU citizens is no substitute for legal protections enforceable in the courts. The government’s policy towards citizens’ rights has been to dress up the existing policy pronouncements and secondary legislation as a new standard of protection of the rights of EU citizens after the EU withdrawal date. Given the approaching withdrawal date, the only way how to ensure legal certainty and a strong enforceable set of protections is to prevent No Deal.
A transition period is the only mechanism that would give enough time to ensure that the rights of EU citizens living and working in the UK are all enshrined in primary law. In the event of a No Deal departure, warm policy pronouncements can be watered down as EU citizens are converted into bargaining chips as part of the effort to redress the UK’s inevitably weaker negotiating position.
There is no such thing as a clean break No Deal Brexit. Nor is there such a thing as a No Deal Brexit which complies with human rights and adequately safeguards the rights of Britons living in other EU member states or EU citizens living in the UK. A No Deal Brexit is a retrograde step which will leave individuals in limbo whilst a new UK-EU relationship is being negotiated, with the potential for the loss of rights for both groups.