Culture, Tourism, Europe and External Relations Committee

Meeting date: Thursday, September 21, 2017

Official Report 550KB pdf

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Withdrawal from the European Union (Citizens’ Rights)

Our second item of business is an evidence session on the current debate on EU citizens’ rights in relation to the article 50 withdrawal negotiations. I welcome our witnesses: Professor Sionaidh Douglas-Scott, who is the anniversary chair in law and the co-director of the centre for law and society in a global context at the Queen Mary school of law at the University of London; Dr Tobias Lock, who is a senior lecturer in EU law and the co-director of the Europa institute at the University of Edinburgh; and Dr Rebecca Zahn, who is a senior lecturer in law at the University of Strathclyde.

I invite Professor Douglas-Scott to make a few opening remarks.

Thank you, convener. I will make three brief remarks: first, on the possible future status of EU citizens; secondly, on the state of the negotiations and its relevance for citizenship; and, thirdly, on the specific role of Scotland and immigration in all of this.

First, as a result of what we have seen so far, we cannot be in any doubt that the role of EU citizens generally is going to change after Brexit. That contrasts with some of the remarks that were made before the EU referendum—by the vote leave campaign, for example, which said:

“It’s irresponsible to scare EU nationals in the UK by hinting that their status might change after Brexit. No one’s suggesting such a thing.”

What we have seen of the UK’s documents so far suggests that the status of EU citizens will change. I am sure that we will talk about the details of that, because some of the questions that I have heard so far this morning have suggested that the details in which the status of EU citizens will change will be brought up in this discussion. Rules on family reunification and the fact that EU citizens in the UK will have to apply—or reapply—for settled status are very important changes.

I know that there may be a question on acquired rights. The weakness of the application of that doctrine—again, as distinct from remarks that were made before the referendum—suggests that citizens’ rights may not be as protected as some might have thought.

Secondly, on the state of the negotiations, citizens’ rights are specifically itemised in the first stage—the so-called divorce settlement—as one of the three key issues, along with Northern Ireland and the budget. We know that those negotiations are in the process of stalling somewhat; Theresa May will give an important speech tomorrow in Florence to try to move things on.

I flag up two points in that context. First, there seems to be no indication so far that negotiations and agreements on citizens’ rights can be ring fenced in any way. Quite a few people would like that to happen so that, if there is controversy or lack of agreement—over the budget, for example—citizens’ rights agreements can still go ahead. Secondly, I do not hear much being said about the European Parliament, although its agreement will be vital because it must agree to the withdrawal agreement. An eye should be kept on the European Parliament and what its view is.

My third and final point concerns Scotland. Free movement and immigration is of particular importance in Scotland. That point has been flagged up in various reports and in evidence to the committee, but I do not see the UK Government taking a great deal of account of it so far.

I will flag up two points on that. First, the UK Government’s recent response to the House of Lords European Union Committee’s “Brexit: devolution” report suggested that the argument that is being made for a differentiated settlement for Scotland, with particular reference to immigration, is not being taken account of.

A second point concerns the context of the European Union (Withdrawal) Bill. I know that the First Ministers have written a letter and that amendments to the bill will be lodged. According to the bill, some of the EU competences that will be returned after Brexit will be held in some sort of holding pattern by the UK Government. Given that some of those competences—for example, the free movement of healthcare, migrant access to benefits and the recognition of professional qualifications—make specific reference to citizens’ rights, it is important that we keep an eye on that bill.

Thank you very much, Professor Douglas-Scott. You mentioned three areas, one of which concerned the ring fencing of citizens’ rights. Are you suggesting that, as things stand, even if we appear to make some progress on citizens’ rights, that could fall through if the whole deal falls through and we could, in effect, find ourselves back at square one?

That is my impression. I might misunderstand what is going on—I do not have an inside ear at the talks—but I know that Brussels has said in the past that nothing is agreed until everything is agreed. The EU budget is seen as being a particularly important point, and any talk about Theresa May’s speech tomorrow seems to focus on what she might offer with regard to the budget, particularly in the context of a transitional deal, rather than anything to do with citizens’ rights. It would be possible in law to come to a separate agreement on citizens’ rights, but I have so far seen no great will on either side to do that.

You also talked about not much being said about the European Parliament. Mr Barnier, whom the committee met last week, has been very strong in the attention that he has paid to the European Parliament; indeed, at his latest press conference, he said that one does not ignore the European Parliament’s important role in signing off the deal. I take it that, when you say that not much is being said about the European Parliament, you are talking not about Mr Barnier but about those in other quarters.

Possibly not. So far, the European Parliament has less to object to in the proposals from the EU side. However, even now, with regard to the situation of UK nationals in the EU, there are a couple of things that we should be worried about the European Parliament not being so happy about, including the question of the free movement within the European Union of UK nationals who are situated in another country. It is important that the UK Government bears in mind the vote that has to be taken in the European Parliament. Guy Verhofstadt, who is very influential in that regard, has certainly been making a lot of comments about the role of citizens.

I wonder whether Dr Lock or Dr Zahn wishes to comment on those specific points.

I agree with Professor Douglas-Scott about EU citizens’ rights being bound up in the whole package of issues that will need to be resolved in the withdrawal agreement. Apart from the economic problems that would result from a no-deal Brexit, one of the most worrying results would be the situation of EU citizens, who are already facing quite a considerable amount of uncertainty. After all, they do not know what their status is going to be in 18 months’ time. Of course, that uncertainty now seems to be translating into their finding it difficult to find jobs, because employers do not know what their situation is going to be in 18 months’ time, and to find housing, because landlords are, according to media reports, reluctant to take them on as tenants. It is a huge problem for both sides, and there is an absolute need to come to an agreement.

I agree with everything that has been said. I will pick up on two points, the first of which is the change in the status of EU citizens after Brexit. I assume that we will come back to that issue in questioning, but I think that the new settled status category is particularly problematic for a host of different reasons that we will, no doubt, get into. On a basic level, it creates legal uncertainty for landlords, employers and even the national health service with regard to knowing whether an EU national can be treated and on what grounds they can be treated post-Brexit, depending on what status they fall into.

The other thing to flag up in relation to the European Union (Withdrawal) Bill is that a lot of the detail on settled status and the requirements for that will, I assume, be contained in the proposed immigration bill, which will be introduced at some point in the near future. I wonder how feasible it is for the EU and the UK to come to a deal on the future of EU citizens’ rights when answers to a lot of the questions—for example, about how settled status will be dealt with—are not clear at the minute but will, I assume, be in a bill that will be forthcoming at some point.

Since you are on the topic, can we tease out what you think the problems are with the UK Government’s proposed settled status?

There are a number of problems with the idea of settled status. I do not see the point of it for EU citizens who are already here. Anybody who has permanent residence up to the cut-off date—we do not know when that will be, but we assume that it will be 29 March 2019, for want of a better date—will, under the UK Government’s proposals, have to apply for a new category of settled status. It is not clear what the criteria for that settled status will be. Will they be the current criteria contained in the citizens’ rights directive? There are hints that they will not be. What kind of identification will be needed?

The leaked Home Office document suggests that, following Brexit, the UK Government will accept only passports rather than identification cards, which are forms of identification that a lot of EU citizens would use to live and work in the UK. What will the fees for the settled status be? The joint technical notes that the European Commission has prepared seem to suggest that there is agreement between parties on the fees. However, if the UK is going to apply the fees that it currently applies to third-country nationals, there is no agreement, because those fees are prohibitively expensive. It is not clear what the fee structure will be.

It is also not clear what the role will be regarding temporary absences. For example, for anybody who has arrived pre-Brexit or during the transitional period, how will periods of unemployment be dealt with? Will they be dealt with under the current EU rules, or will different criteria be taken into account? What about somebody who is a part-time student and a part-time worker? At the minute, under EU law, they could apply as a worker as long as they are engaged in a genuine economic activity. How will that kind of mixed status affect an application for settled status? At the moment, EU citizenship is a fluid concept. Someone can be a student one day and self-employed the next. They can be a worker and then they can be self-sufficient. None of those things affects their status as an EU citizen in the UK and the rights that they derive from that, but how will that work under the settled status?

I could go on and on, but I will stop there.

There are clearly a lot of questions about the negotiating positions of both sides. Sionaidh Douglas-Scott mentioned freedom of movement for UK citizens in the EU, and Dr Lock highlighted the question of whether the EU’s negotiating position proposes more favourable circumstances for EU citizens in the UK than would apply to UK citizens—for example, in terms of family reunification. The UK’s position of refusing to set a date on which any of this applies looks very much like a negotiating chip. The suggestion that Brexit should apply for this purpose from this year, rather than in two years’ time, does not seem to be a serious proposition.

I ask the witnesses to comment on how far the negotiating positions are there to be traded away and how far they are serious obstacles to reaching agreement.

10:15  

The document that has been produced by the European Commission has red, amber and green lights in it. On the one hand, the EU’s current position on EU citizens is what I would call maximalist: it wants indefinite conservation of the status of EU citizens who have exercised their free movement rights to come to the UK. As well as the right to remain, which is uncontroversial, it wants lots of additional rights, such as the right to family reunification without having to meet the income threshold that is currently required of non-EU citizens who want to bring in spouses. On the other hand, the EU’s position on UK citizens is less generous. There is a box where the UK has asked for free movement rights for UK citizens, including the right to move from their current member state to any other EU member state in the future. If a British citizen who currently lives in France decided after Brexit to take a job in Austria, they would not be able to do so under the EU’s proposed withdrawal agreement; they would have to meet Austrian immigration rules. Under the UK’s proposal, they would be allowed to do so because they would continue to benefit from all their EU rights.

The EU’s position is inconsistent in that regard, and I imagine that that is one of the areas where the EU might budge, granting that right to UK citizens in return for concessions on the rights of EU citizens in the UK. I suppose that there will be movement in those areas in the end. There is room for it.

Is the issue of the jurisdiction of the European Court of Justice in a different category? Is it a more difficult obstacle to agreement because the European Union cannot compromise on that issue but the United Kingdom cannot accept it under its current policy?

That is possibly the case. From the EU’s side, it is probably reasonable to demand that some sort of dispute settlement—speaking very broadly—will need to be agreed, especially if the UK introduces its proposed settled status, which would be completely new. The EU is unlikely to accept that UK courts can decide whether the status complies with the EU’s withdrawal agreement without any external body looking at it. Whether that external body must be the European Court of Justice or whether it could be some other external body is a different question.

If we step back and look at the rights of UK citizens in the EU, an example could be that of a UK citizen in Germany who has got into trouble with the law. If Germany decided to kick him out and send him back to the UK, he might say that he has rights under the withdrawal agreement—that he is a permanent resident and that the crime must be of a certain seriousness regarding the danger that is posed to society. The case would go to the German courts, but they would still be able to refer the question to the European Court of Justice, because it is likely to reserve the right to interpret the withdrawal agreement, which it will consider to be an integral part of EU law. However, in a similar situation involving an EU citizen who was living in Britain after Brexit, the case would have to be brought before an immigration tribunal, or whatever tribunal was competent to hear it, and go through the UK courts.

I think that the EU will require either an international law body or, if we are lucky, a specialised tribunal in the UK that promises to follow the ECJ’s judgments—in substance, at least—on those questions. The UK might accept that and the EU might accept it as a compromise solution, but there will have to be an independent adjudication on the withdrawal agreement and the rights under the agreement for EU citizens living in the UK. That will be the bottom line of the EU’s position.

On the UK’s position, the Prime Minister has formulated a red line as far as the direct jurisdiction of the ECJ is concerned, but it is not a technical, legal term and does not make any sense in that regard. I think that she means that the ECJ cannot adjudicate a UK case but that that can be done by a different international body, which might even apply the same law or follow indirectly whatever the ECJ says in substance.

I think that there is room for compromise and that matters can be resolved, but it will be a technical challenge and might create a monster in adjudicative terms.

Do other witnesses have a view?

I completely agree with what my colleague said, but I will add a couple of short comments. On how much room there is for agreement or compromise, the EU and the UK differ on bits and pieces, but the fundamental difference is that it is clear that the UK foresees a totally independent, new, settled status in UK law. In some ways that is understandable, because Britain will have left the EU and the whole point is to apply Britain’s own laws. The UK Government has said that equality with UK nationals should be the basis. Why should an EU citizen 20 years from now, say, have a more favourable right to bring in their foreign national spouse than a UK national has? One can understand to an extent the UK Government’s approach, and that is a basic difference. The status of citizenship will change and EU citizens will not have the same rights.

Enforcing those rights will clearly be important. I will add two short comments to what Dr Lock said. First, the withdrawal agreement, if it is concluded, has to be clear. The EU has said that it should have direct effect, but the UK has not said that. Having direct effect would mean that the agreement could be directly enforced in UK courts without the need for an intervening act of the Westminster Parliament. However, the UK is a dualist country, which means that we enforce international treaties through acts of Parliament, so there is a difference of opinion over that.

Caught in the middle are citizens who might have concerns about their rights being violated and what they will do about that. It is all very well to say that there might be compromise on the Court of Justice of the European Union having a role, but we have to remember that the ECJ has not always been very co-operative. Tobias Lock knows more than anybody about the recent accession agreement to the European convention on human rights, where the ECJ stepped in and said “No, this won’t do. This conflicts with certain aspects of EU law, which is autonomous, and we should have the final say.” That is a problem to think about.

I will move on from the line of Lewis Macdonald’s questioning and tease out something. Dr Lock’s written evidence to the committee refers to dispute resolution under the Treaty on the Functioning of the European Union. It says:

“According to Article 344 TFEU ... This means that the EU cannot conclude an agreement with a third country—such as the UK in the future—which would hand over such jurisdiction to a court other than the ECJ.”

Do you think that the EU will stick to that position or will there be room for manoeuvre?

The proposal that some have mooted—it was probably in some blogs or whatever—is that of a joint international court that would decide on such rights in a binding manner, both for the EU and the UK, which would seem the fairest option but is constitutionally impossible under EU law. The EU cannot agree to that because, if it does, the ECJ will say that it is invalid.

That is why we are likely to get a bifurcated system where we have two courts, as there are under the EEA agreement. An attempt was made to have one common EEA court that would decide for the EU and the other countries—Norway, Liechtenstein and so on—but the ECJ struck it down and said that the ECJ had to be the body to interpret EU law.

The ECJ could change its mind—you never know with courts, because they can find ways to distinguish earlier precedent—but the EU would be unlikely to risk that by agreeing to something with which it cannot constitutionally comply and which would then have to be reopened for negotiation. The EU is very aware of the issue.

One important aspect to bear in mind about the negotiations as a whole is that there are constitutional limits to what the EU negotiators can agree. They are not political limits and they are not set by the Council, Mr Barnier or anyone else; they are limits that are contained in the treaties. Certain limits could not be negotiated away unless—and this is not going to happen—the EU member states were to say that they were going to put it into the treaties that the ECJ must not interfere with their agreement with the UK in any circumstances. It is important to realise that.

Does anyone else want to comment?

I do not want to comment on the specifics of an external tribunal—whether it is some kind of joint committee, arbitration, the CJEU, or something that approaches the European Free Trade Association court—but I would like to say something at some point about enforcing people’s rights. The situation in the UK will change quite radically after Brexit and it is important not to forget that and important to think about how those rights can be enforced. I do not know whether this is the right moment to talk about that.

I do not know whether you were able to catch any of the really interesting evidence that we took last week, when we heard from Professor Sir David Edward. With reference to the UK’s position on certain points, he said:

“It is a bizarre kind of dream-wish that we can play on this playing field on equal terms but still have our own referee. It is just absurd.”—[Official Report, Culture, Tourism, Europe and External Relations Committee, 14 September 2017; c 7.]

Is that a fair assertion to make about the UK’s current position?

It is fair but, given that the whole implication of Brexit is to take back control, a lot of people will be disappointed if the outcome does not involve a much greater competence for UK authorities. That takes us to the point that I was trying to get at. At present, if an EU citizen in the UK receives a wrongful notification from the Home Office—as happened recently, when, in error, 100 people were sent letters telling them to leave the country—they can go to the UK courts and enforce their EU rights there. If the point is not contentious, they do not even have to go to the European Court of Justice.

However, that will no longer be the case after Brexit. If there is an argument that the UK—specifically the Home Office—is doing something that seems to contravene the withdrawal agreement, a huge question will arise about what will happen and who will determine whether the interpretation is in line with the agreement. UK courts might say that that is a matter of international law, which they can try to observe but, if they are faced with an act of Parliament, they will have to apply it. That is where a joint committee or some other tribunal would be useful, but then the obstacles that Dr Lock referred to would be faced in relation to the autonomy of the ECJ and so on.

There is also the point that David Edward has made: if we have a third type of tribunal, how will it be funded, how many personnel will it have, who will be its judges, who will appoint them and how much will it cost?

10:30  

That is one point that makes me really concerned for the future, given all the questions that you have raised about settled status and the fact that millions of EU citizens could apply for it. How will the Home Office cope with that in light of everything that will have to be set up to deal with it? The situation is very complex, and I am grateful for your comments.

I have a relatively brief question. The UK Government is not really capable of fulfilling its own position, is it? On a purely logistical basis, the demand that it would create would far outstrip capacity and result in astronomical waiting times for European citizens who live here to have any applications processed.

I think that that is right. I read a statistic last week that showed that it would take the Home Office somewhere between 30 and 140 years just to process permanent residence applications at the rate at which it is currently operating.

I read the report that the committee produced on citizens’ rights. The majority of EU citizens in the UK, and certainly in Scotland, will have been here for five years or longer when the UK leaves the EU in March 2019, and anecdotal evidence suggests that a lot of them are now applying for permanent residence, so the easiest thing could be to simplify life by saying that they can send in their permanent resident cards and receive settled status or indefinite leave to remain, so that we just slot citizens into the current immigration system. That would make the most sense.

That is the point that I would have made. The UK Government says that the process will be streamlined and efficient, but so far what we have seen from the Home Office is the reverse. The misinformation and errors make one a bit sceptical about a future streamlined process.

My question is about residence rights. We have received evidence from the UK law societies that

“Residence rights alone may become meaningless if not accompanied by the right to continue economic activities.”

The situation, particularly with multinationals, is that a growing number of people work from home, but the office that they are associated with could be in a different country in the EU. How will the situation be resolved? Is there an understanding of that situation?

Are you thinking of someone who works from home in the UK but whose actual place of work is in Germany, for example?

That could be the case. Because of restructuring, for example, somebody who used to work in an office in Paris for IBM may now live somewhere in the UK and work from home.

I suppose that the answer depends on when a person started doing that in the UK and whether they fulfil the residence criteria to get settled status, which, according to the UK Government proposal, would give them equality with UK nationals to continue to work in the UK, even if they were a virtual worker who worked from home.

Another question concerns frontier workers, who may live in one place and work in another. I am not sure that I can give you a satisfactory answer on how they would be dealt with, but my fellow witnesses may have views on that.

If people are frontier workers at the cut-off date, they will probably be caught by that agreement. The red, amber and green lights document that the European Commission produced seems to have reached agreement on such workers. I do not know what exactly that agreement is, but I suppose that their status will continue as it was. Of course, such workers might not be able to produce evidence as easily as those who are resident here and who, for example, have a mortgage and can show that they have lived and worked here for X amount of time. That would be more difficult for frontier workers, but it should be possible to sort out such practicalities.

The situation that Stuart McMillan mentions is important, because it is probably quite common—especially with spouses of people who physically work in the UK and who might come along and do their work from home because they could not relocate or find a job in the UK that was adequate for them.

Frontier workers are important, and the negotiations are extremely vague on that issue.

To move away from the negotiations, if somebody who is working from home, say, in Scotland, provides a service in Germany and can show that they have a property or a contractual right here—a private law right—they may be able to rely on acquired rights or on the European convention on human rights to enforce the right to property. Article 1 of the European convention covers the right to property, so they might have a claim against the UK Government on that basis. Litigating is probably the last thing that they will want to do, but it should not be forgotten.

That is helpful—thank you.

I have a supplementary question. Notwithstanding the specific point that Stuart McMillan made, I understand that the UK law societies’ concern was that there is no right to continue economic activities; there are only residence rights.

That is right.

So is the point broader than the specific example? It is about the right to engage in cross-border business activity. Does the panel share the UK law societies’ concern that such rights are not properly entrenched?

I think so. That also raises a point about the free movement of services and freedom of establishment—for example, the freedom to set up a business or to provide a service in another country—which are related rights that EU citizens also have.

One category of worker that is mentioned in the proposals is posted workers. The EU has said that such workers will not be dealt with under citizens’ rights, because they fall under free movement of services rather than under the citizenship and free movement of workers provisions in the treaty, whereas the UK wants them to be included in the discussion on citizens’ rights. It is concerning that the citizens’ rights paper does not take into account all the ancillary rights from which EU citizens benefit, such as the right to provide a service or to set themselves up in business in another country. As far as I know, we have not seen a UK position paper on either of those areas.

I imagine that the position will become even more complicated in the future, because all the free-trade agreements that the EU has signed do not cover services. Do you see a problem developing for people who are engaged in service industries?

I see a problem in that area if cross-border aspects are involved. There will be an option post-Brexit. The EU has adopted directives in relation to, for example, intercompany transfers that might come into play for British workers who work abroad for short periods and come back. Those directives are aimed at third-country nationals at the minute and they do not contain nearly as many positive rights for workers who are being transferred or sent into the EU and who are currently protected under citizens’ rights.

I have a follow-up on the potential alternative to the European Court of Justice that Dr Lock mentioned. As I understand it, there is a bifurcated system, whereby there is a separate court for disputes between EEA members and the European Union. That could be a template for a compromise between the EU position and the position in the UK paper. Could you briefly talk us through what that separate court involves and its functionality?

Sure. As you know, there is the European Free Trade Association, which has four members: Liechtenstein, Norway, Iceland and Switzerland. Three of them—all of them except Switzerland—decided to join the EU member states in the European Economic Area, which, simply speaking, extends the single market to those three countries, but not to Switzerland. The court that is in charge of looking after issues that arise in those three EFTA countries is called the EFTA Court—it is a bit of a misnomer; it should be called the EEA court or something like that. It is based in Luxembourg. It works in a fairly similar way to the ECJ, in that the courts of Liechtenstein, Norway and Iceland are allowed to ask the EFTA Court for interpretations of EEA law, in much the same way as the courts of the EU member states are allowed to ask the ECJ for interpretations of EU law. The main difference is that the answer that they get back is not strictly binding on them—it is an advisory opinion rather than a binding judgment, which is what we get from the ECJ. That is one difference.

Of course, the EFTA Court interprets broadly the same—in fact, often exactly the same—rules as the ECJ. A lot of EU regulations will have been translated into EEA law and will be binding on EEA members. In those interpretations, strictly speaking, the EFTA Court is bound to follow only everything that the ECJ has done before 1992, when the EEA agreement entered into force. Much of that is still relevant, but some of it is no longer relevant, because the legislation might no longer apply. In practice, the EFTA Court will follow new ECJ judgments if they apply to the EEA; strictly speaking, it is not technically bound to do so, but it follows step in order to achieve the overall aim of the EEA agreement, which is homogeneity. The single market is supposed to work in the same manner in Norway and in France—the whole point is that there should be no difference for operators. We have the two courts only because the ECJ threw a spanner in the works in 1991 and said that it had to decide what the EEA agreement meant for the EU member states, of which there are now 28, while the EFTA countries could decide that for themselves, but following the ECJ as far as possible.

That is the main difference between the two courts. There is evidence that the EFTA Court does not always follow the ECJ. Of course, cases come to courts in a random manner, and the EFTA Court will often be the first court to be asked a certain question; there might be no ECJ precedent, and it will have to answer the question. There are situations in which the EFTA Court deviates a little from the ECJ, especially on immigration, because there is, of course, no EU citizenship in the EEA. The EEA has free movement of workers and freedom of establishment, but it does not have the added umbrella of EU citizenship, which provides an additional status. The individual rights are not that different at all because, broadly speaking, the EEA will accept whatever is in the citizenship directive. However, the overall aim of achieving EU citizenship, which the ECJ calls the fundamental status of EU citizens, does not apply in the EEA. There is some evidence of the EFTA Court deviating from ECJ case law in such cases on those grounds.

Thank you. That was very helpful.

I want to come back on the question that I asked earlier about whether a bargaining position was being adopted in relation to the EU’s approach on a number of areas. It seems to me that the most obvious example of a bargaining position being adopted from the UK point of view is on the question of what the cut-off date is.

As I understand the UK position, anyone who has arrived here from another EU country since March does not know whether the UK proposes that they should be eligible to apply for settled status or whether any other provisions of the withdrawal agreement will apply to them. That seems to be on the table as a negotiating chip. What is the consequence of that uncertainty? We do not yet know what the cut-off date will be. What does that mean for those people and for the overall shape of the withdrawal agreement?

10:45  

That is partly not a legal question but a question simply about how living in a state of uncertainty impacts those people’s everyday lives. On the legal impact, the UK should bear in mind that claims might be brought under article 8 of the European convention on human rights—the right to respect for one’s private life—on the basis of the uncertainty and stress that could be caused by not knowing one’s status. Article 8 lies behind a lot of the discussion about citizens’ rights, because it covers people’s personal and private lives. That is relevant and should be borne in mind. I agree that those people’s status is being used as a bargaining chip. I do not know what one could do legally to change that situation; it seems to be a political matter for negotiation and discussion.

Is the UK’s position on the matter potentially inconsistent with its position, and with the legal position, on other things? Presumably, everything else, including trading arrangements and existing treaty obligations, will come to an end on a given day—probably 29 March 2019—so the UK’s position on the matter might be out of step with its position on all those other obligations. Is that a legally defensible position in its own right?

Legally, the UK could, if it chose, have different regimes for everything, but that would of course create a logical inconsistency. We must not forget that, under the current legal position, EU citizens still have a right to come here, to take up work and to do whatever else they were able to do before March 2017 and, indeed, before the EU referendum was ever mentioned. Those are rights under the EU treaties and they will continue to be protected up until the moment that the UK leaves the EU.

It is a general principle of law that we must always be careful when it comes to the retroactive and retrospective application of new rules. There must be very good reasons for doing that. In criminal law, such application is always prohibited and we can never do it. Because immigration status and knowing where one will live and how one will earn a living goes to the heart of a person’s existence, I would be very careful with that, too, especially in the light of human rights law and the European convention on human rights.

There is some precedent on expulsion and article 8 of the European convention. There is also a precedent on the deprivation of permanent residency, which happened in the aftermath of the disintegration of Yugoslavia. Certain individuals, because they had the wrong citizenship—they were Croatian but they were living in Slovenia, which of course did not matter before the dissolution of Yugoslavia, because it was the same state—were deprived of their status as residents. Even though there was a registration period, they missed it for various reasons—they were in hospital, for example, or they simply did not know about it. The European Court of Human Rights intervened, saying that that was contrary to the right to family life.

Of course, those are extreme circumstances, and not every change in the status of EU citizens will automatically be a violation of article 8 of the European convention. However, retrospective arrangements are always suspicious from the point of view of legal certainty and the rule of law, and that is where one might win in Strasbourg.

We do not yet know what the exit date will be; the withdrawal bill says that it is for ministers to determine, and they could determine different exit dates for different aspects of the law.

One example that might make a legal difference to the cut-off date relates to family members of EU citizens in the UK. There is a differentiation in the UK’s position paper and that of the EU between current and future family members, and the cut-off date is the date at which it will be determined whether someone is a current or future family member, with all the implications that that will have not just for EU citizens in the UK but for UK citizens in the EU who want to come back with an EU family member—who after the cut-off date will presumably be a third-country national and will have to apply for a visa under the immigration rules—and UK citizens who want to come back with third-country-national spouses from another EU member state. At the minute, a UK citizen who comes back after living abroad in another EU member state exercises their citizenship rights and therefore can apply for a visa for their third-country-national spouse under EU rules on family members; however, that will not apply after the cut-off date. In those circumstances, they will have to apply under the immigration rules, which will have serious cost implications as well as serious implications for the family member’s right to work.

So if the UK Government wanted to avoid a complete legal minefield, it would abandon any proposal for a cut-off date that was earlier than the date for withdrawing from the European Union.

Or it could give legal certainty as to when the cut-off date would be. If the cut-off date was to be earlier—say, March 2018—it would be fine if the UK Government announced that tomorrow, because people could work with it and know what the implications might be. However, the current uncertainty, in which it is almost being suggested that the cut-off date was six months ago, creates havoc not only in individuals’ lives but for landlords, employers and so on.

What would be the implications of the talks collapsing without a deal?

Not very good.

It goes without saying that there would be legal uncertainty, but I think that what would happen is that on 29 March 2019, the UK would leave the EU and no longer be an EU member state; EU law would cease to apply to the UK and would no longer be directly applicable in the UK; and, presumably, the same would go for EU law for UK citizens living in the rest of the EU.

I think that on both sides there would need to be unilateral rules to deal with the fallout of all this, and some of those rules would have to relate to the status of EU citizens living in the UK and UK citizens living in the EU. What would their future status be? There will be a separate immigration bill, but I imagine that, under the European Union (Withdrawal) Bill, a lot of the rights in the citizens’ rights directive would simply be transferred into UK law. If the Government was in a benign mood, it could decree that the rights would just continue and everything would be fine.

The same could happen at EU level, of course, but there is no guarantee that that would be the case. It is almost certain that the rights of UK citizens in the EU and EU citizens in the UK will differ, although that is something that both sides want to avoid at the moment.

I am not sure whether everyone will agree with this, but we do not know whether there are any broader protections out there either in the common law for people who have exercised rights in the past and have been deprived of them or, indeed, in EU law for UK citizens living in the EU. Will EU law still somehow apply to them? Will they still be able to go to the courts? Will reference be made to the European Court of Justice with regard to individuals who have lost their EU citizenship because their member state has left the EU? Can they still rely on, say, acquired rights? There is absolutely no certainty on that point at all—we will just have to wait and see.

There might be one difference between the situation of EU citizens in the UK and UK citizens in the EU, in that the EU has its rules for third-country nationals and a long-term residents directive. They might apply to UK nationals who have, say, lived in Spain for five years or more, so their situation might be a bit more certain than that of the EU nationals in the UK.

Although those EU rules are not nearly as generous as the rules for EU citizens, they provide a level of protection, even with regard to free movement of certain types of long-term residents from one member state to another. The problem is that they generally protect residents who can demonstrate that they have a stable income of a certain amount, that they have been resident for more than five years and so on. In other words, they cover those in the better-off categories, not, say, someone who has gone to work in a bar in Spain.

I agree with the previous comments. I assume that in the event of there being no deal UK citizens living in the EU would eventually fall under limited EU rules on third-country migration and/or the member state rules of the member state in which they find themselves. At EU level, there are certain common rules on third-country migration relating to students, researchers, highly-skilled migrants and intercorporate transfers and very limited protections for seasonal work, and there is, of course, also the long-term residents directive. However, in a lot of those rules, there is limited or no equal treatment, and there are limits on the amount and kind of work that you can do and the extent to which you can move between employers. Eventually, I think that all of this will just fall under the common rules.

Thank you very much for your evidence. We now move into private session.

10:58 Meeting continued in private until 11:14.