The legal limbo after Brexit

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
2 March 2017

The Joint Parliamentary Committee said that Human Rights should be safeguarded and called on the Government to take a firm position on residence rights for EU nationals living in the UK. It seems that the human rights of EU nationals living in the UK are being used as bargaining chips in the Brexit negotiations. In a strongly worded report the joint Parliamentary Committee on Human Rights highlighted the political uncertainty over the residential status of both EU citizens in the UK and the 1.2m Britons believed to be living elsewhere within the European Union. The Joint Committee on Human Rights which is made up of both peers and MPs stressed the urgency of resolving the question of residence rights.

It is concerned about comments made by Liam Fox, the Secretary of State for International Trade, who described the EU nationals in the UK as one of the “main cards” in the Brexit negotiations. The report recommends Ministers safeguard the residence rights of EU nationals in other EU states at the outset of Brexit negotiations, through a separate preliminary agreement. Individual rights will depend on the length of residence and other factors.

EU nationals who have been in the UK for over five years may nevertheless not satisfy the criteria for permanent residence if they have not been exercising treaty rights such as working, says the report. Family connections and residence rights of any children will be relevant and therefore each case would have to be considered separately. The Joint Committee says it was contacted by anxious individuals about residence rights and it was also asked to consider the impact on the hundreds of thousands of couples, where one partner is British and the other from another EU country. It is regrettable, the report adds, that the Government has not been able to set out any clear vision as to how it expects Brexit will impact the UK Human Rights framework.

Lady Kennedy said that EU nationals living in Britain should make a file of documents that prove they have been living in the country since before the general referendum. She suggested collecting together bills, rental or home ownership documents, employment papers or evidence of appointments for those who do not have jobs. The question mark over the rights of EU nationals to live in the UK may be fuelling xenophobic sentiments was suggested by the Bulgarian ambassador. People living in the UK for more than five years may not be eligible for permanent residency because of the little known requirement for students and non-workers to have private medical insurance. International law may not provide much reassurance for EU citizens and the doctrine of acquired rights under public international law will provide little if any effective protection for former EU rights once the UK withdraws from the EU says the Committee.

Evidence heard by the peers on the EU Justice Sub-Committee suggested asking those who qualified to remain in Britain to apply for permanent residence would result in a vast administrative burden on the Government. Instead the Committee urges the Government to consider simple new status for all Europeans in Britain before a set date. There is an estimate of 1.2 Britons living elsewhere in the EU with the majority in Spain, Ireland and France.

There has also been accusations that Britain is attempting to blackmail and divide EU countries in the run up to the Brexit negotiations. Teresa May’s approach has been described as “disastrous crash landing.” Formal talks are due to open next month, but a trio of Parliamentary leaders as close allies of the German Chancellor Angela Merkel, said that those talks risk ending in failure unless Britain changes what they say are divide and rule tactics. A leaked European Parliamentary report seen by the Guardian Newspaper goes even further accusing Britain of trying to move the goal posts and do away with the referee in the upcoming international clash of negotiations, once Article 50 is invoked. At the route of the anger is the belief that Britain does not appreciate that the EU 27 nations also have lines.