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.

Conclusions

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'

Bridge over troubled legal water? Legal issues of the Brexit transition period

Professor Steve Peers*

Compared to famous Florentines, Theresa May’s recent speech on the UK’s Brexit plans inevitably owed more to Machiavelli than Leonardo da Vinci. Nevertheless, it gave a rough indication of the basic legal architecture that the UK government would like to govern its relationship with the EU for a transition period after Brexit Day. I have previously summarised and commented upon the main points of the Florence speech, but there is more to say on this legal framework – and also on the rules which would apply to EU27 citizens in the UK during the transition period.

Legal framework

First of all, is a transition period after Brexit Day even legally possible? If so, what provision of EU law would apply?

Article 50 TEU, which sets out the basic rules on Member States’ withdrawal from EU membership, is silent on the issue of any transitional period after the withdrawal date. However, it might be noted that Article 49 TEU, governing accession, is equally silent on transitional periods after joining the EU; nevertheless such periods are an established feature of the accession process.

In its negotiating guidelines on the Brexit withdrawal agreement, the European Council (EU27 States’ leaders) stated that:

To the extent necessary and legally possible, the negotiations may also seek to determine transitional arrangements which are in the interest of the Union and, as appropriate, to provide for bridges towards the foreseeable framework for the future relationship in the light of the progress made. Any such transitional arrangements must be clearly defined, limited in time, and subject to effective enforcement mechanisms. Should a time-limited prolongation of Union acquis be considered, this would require existing Union regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures to apply.

These principles are set out again in the negotiation directives on the agreement, handed down to the European Commission by the Council (EU27 States’ ministers) at paragraph 19. Those negotiation directives go into no further detail on the transition period issue for now; instead, there will be further negotiation directives in future, once the EU27 side has decided that there has been ‘sufficient progress’ on its priority issues (EU27 and UK citizens’ rights, financial issues, Northern Ireland) during the Brexit talks. 

For the UK’s part, the Florence speech states that on Brexit Day, the UK will cease to participate in the EU political institutions. The period must be ‘strictly time limited’, suggesting ‘around two years’;  but the two sides ‘could also agree to bring forward’ aspects, such as a new dispute settlement system. The latter point implies that the ECJ will apply until that point.

Substantively, during the transitional period, ‘access to one another’s markets should continue on current terms’; the UK will ‘continue to take part in existing security measures’; and the ‘framework’ will be ‘the existing structure of EU rules and regulations’.  There would be no change to other Member States’ payments and contributions during the current funding cycle (ending in 2020), implying that EU laws on funding and spending continue without amendment until then.

EU citizens can still come to live and work during this period, but they will be registered; but as I noted in the previous blog post, such registration is allowed under the EU citizens’ Directive. (More on that below). Finally, the speech referred to one substantive difference in law: the UK would hold its own trade negotiations, and would ‘no longer directly benefit’ from the EU’s trade negotiations.

Moreover, the speech made comments on another aspect of the withdrawal agreement – maintaining EU27 citizens’ rights – that may be relevant by analogy to transition issues. The Prime Minister said that the UK would ‘incorporate our agreement [on citizens’ rights] fully into UK law and make sure the UK courts can refer directly to it’; and that UK courts must be ‘able to take into account’ relevant ECJ case law.

Comparing the UK to the EU27 position on the transitional period, there are lots of similarities. Both sides are willing to contemplate such a period (the EU27’s ‘legally possible’ caveat is considered below). Both sides want it to be for a limited time. The Florence speech states that the transitional rules would be linked with the future permanent UK/EU relationship (‘a bridge from where we are now to where we want to be’), matching the EU27 position. (Note there’s no need to define the future relationship in detail in the withdrawal deal: Article 50 refers only to defining a ‘framework’ for that relationship, and the EU negotiation position refers only to bridges towards the foreseeable future framework).

The greatest difficulties may come with the issues of post-Brexit EU legislation, and the legal effect of EU law. At present the European Communities Act provides for the adoption of new EU law into the UK’s legal order. It gives that law direct effect and supremacy, and gives effect to ECJ rulings in domestic law. However, the proposed EU Withdrawal Bill would remove all these provisions, instead retaining pre-Brexit EU rules and ECJ judgments in force pending potential amendment by government or Parliament. Pre-Brexit ECJ judgments would retain their force subject to such amendments or overruling by the UK Supreme Court, and UK courts would have an option to take post-Brexit ECJ case law into account. The Bill would also remove the principle of damages liability for breach of EU law, and would not keep the EU Charter of Fundamental Rights as part of retained EU law in the UK (on the latter point, see discussion here).

Technically, anything which the UK agrees to in the Withdrawal Agreement can be incorporated into UK law easily enough, since clause 9 of the Withdrawal Bill would give the UK government unlimited power to amend any UK laws to give effect to that Agreement. (Note, however, that the Bill could be amended in Parliament as regards any of these points before it becomes an Act of Parliament). So the issue is not the capability of the UK government to give effect to the Withdrawal Agreement, but its willingness to negotiate on these issues.

After her speech, the Prime Minister deliberately avoided answering a question about whether the UK would apply post-Brexit EU law during the transition period, saying it was a matter for negotiation. In fact, there is some flexibility on this, since the EU27 negotiation position does not take any view on that point. (Remember that the EU27 negotiation position on transitional issues will be enlarged later). In the meantime, UK cabinet members have tried to rule this prospect out. (Note that the speech refers to keeping ‘existing’ and ‘current’ EU law in force).

There is less flexibility as regards the legal effect of EU law, where – to recall – the EU27 position is that ‘existing EU regulatory, budgetary, supervisory, judiciary and enforcement instruments and structures’ should apply. The combined reference to ‘judiciary’ and ‘enforcement’ structures suggest that the ECJ’s current jurisdiction, and the current legal effect of EU law in the UK, should apply. While the Prime Minister obliquely referred to the ECJ, she hoped that its role could be terminated early as regards the UK; and the UK government’s position on the legal status of EU27 citizens (no ECJ role; option to take account of ECJ rulings; incorporation of Withdrawal Agreement into UK law but no special status), if extended to the transitional rules in the Withdrawal Agreement, would fall short of the EU27 position. Equally, while it is not expressly mentioned in the current negotiation position, the EU27 might, when amending that position, argue that the EU Charter should still apply to the UK during the transitional period. (Note that the Charter does not apply to all actions of Member States, but only applies to Member States when they implement EU law). 

Three further points. First, what happens to the position of non-EU countries as regards the UK? They are parties to some treaties with the EU alone, and to some treaties with the EU together with its Member States. The legal issues arising in this respect during the transitional period will have to be addressed.

Secondly, what happens after the end of the transitional period? In particular, what if it is deemed desirable on both sides to continue the arrangement, in whole or part? In that case, the special decision-making rule applying to Article 50 (see next point) will have expired, and so the normal decision-making rules of EU law will apply. Depending on the content of what is carried forward then, this may require some unanimous voting and even ratification by all Member States, although it should be recalled that the EU side can decide to apply treaties provisionally pending national ratification.

That brings us to the most fundamental legal issue: can the EU27 side include a transitional deal within the scope of Article 50 in the first place? The words ‘[t]o the extent…legally possible’ hint at some doubt on this point, presumably because of an argument that Article 50 cannot extend to the regulation of legal relationships that are created after Brexit Day, but only to the regulation and/or termination of those created before that date. However, while little is certain now about how the ECJ might interpret Article 50, in my view that interpretation is too narrow, given that Article 50 refers to taking account of the framework for future relations with the withdrawing state, and Article 8 TEU refers to maintaining strong relationships with neighbouring non-EU countries. If this is correct, it follows that as long as the transitional deal is limited in time and linked to the future framework for relations – as both the EU27 and UK side intend – there should not be a legal problem. (On the other hand, there is nothing in Article 50 to require that anything in the withdrawal agreement must be subject to ECJ jurisdiction, besides the usual rule that only the ECJ can rule definitively on how to interpret EU law for EU Member States).

The importance of this is that the Article 50 agreement needs only a qualified majority vote to be approved by the EU27, without national ratification by Member States (as confirmed in the negotiation directives). But the EU27 and UK should prepare a ‘Plan B’ in the event that some Eurosceptic devoted to a ‘WTO-only’ and/or ‘no deal’ relationship between the UK and EU brings a legal challenge. If such a challenge were successful, the ECJ might anyway maintain the problematic parts of the treaty in force temporarily due to legal certainty; and the UK and EU should aim to agree the impugned parts of the Withdrawal Agreement on the correct legal basis as soon as possible, applying that new treaty provisionally.

Extension of the Article 50 period

Some have suggested extending the negotiation period for the Brexit talks instead – as Article 50 expressly allows for – arguing that a transition phase is no different from extending the negotiation period anyway.  It’s true that legally the extension of the negotiation period would be simple: it requires only a unanimous vote of the EU27 Member States (with no national ratification) required, plus the UK government, with no role for the European Parliament. As a matter of domestic UK law, arguably an Act of Parliament would be required to this end (note that the European Union (Notification of Withdrawal) Act, which gave the government power to invoke Article 50 pursuant to the Miller judgment, does not mention the issue of extension).

But an extension to the negotiation period would be politically difficult. It’s not known whether the EU27 would give their unanimous consent, particularly given the awkward consequence that the UK would then end up participating in the 2019 European Parliament elections. And within the UK, announcing an intention to delay Brexit would likely mean that Theresa May would immediately be the centrepiece of a modern version of Da Vinci’s Last Supper – followed swiftly by the political resurrection of Nigel Farage.

Furthermore, it’s false to say that there is really no difference between a negotiation extension and a transition period. First of all, during a negotiation extension the UK would still participate in the EU’s political institutions. Secondly, it’s certain that there would be no change in the legal effect of EU law in the UK or the substance of EU laws in the UK, and that new EU laws and new ECJ judgments would continue to apply, in the event of a negotiation extension – whereas those issues may, as discussed above and below, be addressed differently during a transition period.

Thirdly, in the event of a change of mind in the UK on Brexit, remaining within the EU on the basis of a negotiation extension may be different from rejoining the EU after having left. This depends (a) on the resolution of some legal issues concerning Article 50 (Can the withdrawal notice be rescinded? If so, must the EU consent? If so, can the EU attach conditions? Or can the Article 50 period simply be extended indefinitely, with no further negotiation taking place?) and (b) on the extent to which the UK could rejoin on the same terms (Would the EU have already removed the UK’s opt-outs from the Treaties? Would the UK rebate on the EU budget have been rescinded yet?).

EU27 citizens

As noted already, the UK government’s intention to require EU citizens to register if they come to the UK during the transitional period is consistent with the EU citizens’ Directive, which allows registration for stays longer than three months. Indeed, the Commission has reported that almost all EU states register citizens from other EU Member States. But a failure to register can only be punished by proportionate penalties, not expulsion or detention (see the ECJ ruling in Watson and Bellman, concerning a prior version of this law). According to the ECJ ruling in Huber, Member States may include information on EU citizens in a database, but this can only be used for the purpose of administering EU free movement law; if they put information on EU citizens in a criminal database, they must be treated equally with nationals of that Member State.

The Directive goes on to say that Member States cannot insist that registration certificates must be the sole method of checking entitlement to reside or any other right, since other forms of proving identity are possible; and that Member States can only penalise EU citizens for not carrying their registration certificates if they penalise their own citizens the same way for not carrying ID cards (see also the ECJ judgment in Oulane). It follows that as long as the UK doesn’t have an ID card system, it could not penalise EU citizens for not carrying registration certificates.

So while registration of EU citizens is permissible, the limits set out in the legislation and case law put the more general questions about ‘transition law’ raised in this blog post in a particular context. It would not be credible for the EU27 to insist that the UK not register EU citizens at all, particularly given that most of them do the same thing themselves. But will the important limits on registration apply? It’s an important question given the tendency of the UK Home Office to create a ‘hostile environment’ for EU and non-EU citizens alike, and the risk that absent the application of EU case law and legislation to this issue, there could be fines, detention, expulsion or other refusals of rights for EU citizens who didn’t register, lost their registration certificate or forgot to carry it. (All the same issues arise if the UK extends – as it could – the registration obligation to EU citizens who were present before Brexit Day).

If the EU27 and UK agree that the existing EU law still applies and the pre-Brexit ECJ case law remains binding, in principle the issue is resolved, at least during the transitional period. But what if the UK breaches this agreement, or if there is some question about how the UK applies the requirement, or if there is some new relevant ECJ case law? Then the important questions will be whether the existing EU law remedies (direct effect, supremacy, damages) are still available; whether UK courts can still ask the ECJ questions; and whether the UK courts are obliged to follow post-Brexit ECJ case law.

This issue, important as it would be for many EU citizens resident in the UK, is only a microcosm of the legal issues raised by the transition period – and which the UK and EU27 will hopefully have time to consider properly.

Barnard & Peers: chapter 27

Photo credit: Thousand Wonders

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

All of life is changed: The impact of Brexit on UK nationals living in other EU Member States

Sarah McCloskey and Tamara Hervey, Sheffield Law School

After a series of cataclysmic political events, most people can empathise with the stress and anxiety born out of the subsequent uncertainty. At this time, the people who are enduring the greatest burden are those who have enjoyed a right to free movement exercised in good faith without concern that it might be taken away. Such is Brexit: the source of frustration, a nuisance of the daily news to many, but for EU citizens in the UK and UK nationals living in other Member States, it holds the potential to fundamentally change their very way of life. Without for a moment disregarding the (moral and economic) significance of the former group, we focus here on the latter.

What do the UK government’s proposals mean for UK nationals in the EU-27? What does it mean for their “right to remain, healthcare arrangements under the EU social security agreements, and pension entitlements and payments”? As Strumia highlights, the UK’s offer focuses on EU citizens in the UK. But in a negotiation, the offers made on one side have implications for those on the other. We seek to deduce from the UK’s negotiating position what it might mean for UK nationals in the EU-27.

UK’s Negotiating Position

Despite the hopes for "a magnanimous gesture on the part of the Prime Minister,” the UK government has maintained its stance that a unilateral offer to EU-27 nationals resident in the UK on ‘Brexit Day’ would compromise its negotiating position. Thus, its proposal is founded on the condition of reciprocity. Of course, we remain uncertain as to the outcome of the negotiations. Nevertheless, we can consider the extent to which the UK’s position is a “fair and serious” offer (as the UK government has portrayed) by comparison with the EU’s prior counterpart proposal.

According to the UK negotiating position, upon the UK's exit from the EU, EU citizens in the UK will be required to apply for a new residence status within a grace period of two years. Despite promises of a “streamlined” procedure with incurred fees set at a “reasonable level”, the proposal has faced criticism for subjecting even those who have already obtained a certificate of permanent residence to this new application process. Reciprocity on these terms would dictate that UK nationals in the EU-27 must therefore expect analogous treatment under their post-Brexit status of “third country nationals” (TCNs). They would need to apply for a new residence status under the immigration law of the EU Member State in which they reside. And again, if reciprocity applies, while those who arrive before the yet-to-be-specified date will be granted a temporary status that allows them the opportunity to accrue the vital 5 years of residence, those who arrive at any time thereafter will have no such protection or special treatment. Instead, they would be subject to ordinary immigration law.

Further, any disputes would have to be settled through national courts in the EU-27 country, without any recourse to a supranational authority (such as the CJEU) for a definitive settlement. It would be significantly more difficult to enforce residence and other rights than it is at present.

Under the UK negotiating position, those EU nationals who are successful will be granted what is referred to as "settled status" in UK law pursuant to the Immigration Act 1971. This is subject to certain criteria, including that the applicant must have been resident in the UK before an (as yet un-) specified date (that will fall between 29 March 2017, when the Article 50 letter was sent, and Brexit Day) and have completed a period of 5 years’ continuous residence. It is worth noting here that the UK government has not outlined its definition of “continuous residence” and, given the Prime Minister’s hostility towards the CJEU, it cannot be presumed that it mirrors that accepted in EU law.

Again, if applied reciprocally, UK nationals currently resident in the EU-27 (as EU-27 nationals currently resident in the UK) would be potentially precluded from relying on the benefits of free movement to visit family or for work-related events, for example, in case such visits interrupt their period of continuous residence for longer than permitted under the relevant law. Further, as Strumia notes, this means that the UK’s present protection of free movement is meaningless for EU citizens living in the UK, as any such exercise could be to the detriment of their post-Brexit application.  Like so many other issues, the devil is in the detail and thus, it remains to be seen just how “smooth and simple” acquiring these new rights will be.

Turning to the more specific issues of pensions, child benefits, education, and healthcare, the UK’s negotiating position offers a little more information. On pensions, the UK’s position is explicit that ‘the UK will continue to export and uprate the UK State Pension within the EU’. Given that 21% of UK nationals in EU-27 countries are over the age of 65, this is a significant commitment. Likewise, the current position on child benefit continues: individuals resident before Brexit Day will be able to export any child benefit to which they are entitled in their country of residence, which is of great importance for divorced and separated families. On education, the right of UK students to remain in the respective EU-27 country applies up until course completion (and not beyond) and those with residence rights have the same access to tuition fees and any maintenance grants as nationals of the host country.

Healthcare, however, poses more complexities. The UK government has proposed a new arrangement ‘akin to the EHIC scheme’ (i.e. the European Health Insurance Card, which currently entitles those covered by their home health care system like the NHS to medical treatment in another EU country).  There are non-EU states incorporated within the EHIC scheme, so in theory the UK could join post-Brexit. But in practice, free movement rights will have to be included. Otherwise, the technical and administrative logistics, outside of the current arrangements for coordination of social security, may prove insuperable. The EU coordination of social security is a rules-based system: it is not a matter of politically negotiated bespoke arrangements. A reciprocal deal (to be part of the rules-based system) may be feasible. Access to health care outside such a system (without free movement, without the possibility of CJEU oversight) is unlikely to be so. If that is so, in principle a reciprocal deal would leave UK nationals resident in the EU to fall back on national law to determine their health care entitlements.

The UK’s negotiating position does not explicitly address a host of other practicalities for UK nationals resident in the EU-27 (and vice versa): equal access to housing; equal tax benefits; entitlement to move to and reside in other EU Member States; and equal entitlements to union membership. This is far from offering the claimed reassurance in the face of uncertainty.

In the absence of such details, the only guiding light is: "After we leave the EU, the UK will no longer be subject to EU law. Free movement rights will come to an end and therefore cannot be carried forward, as an EU legal right, into the post-exit UK legal regime.”

If this is the default, and reciprocity is the basis for future entitlements, the effects for UK nationals in the EU-27 would be to face the same prospect of rights reduction as their EU citizen counterparts in the UK.

Applicable EU law

However, this analysis on the basis of reciprocity ignores the fact that the EU itself already has rules concerning the treatment of non-EU TCNs resident in its Member States. The UK’s rejection of an ‘acquired rights’ approach or, indeed, a bespoke proposal of any kind marks an intention to simply align the status of EU nationals with UK immigration law, with all the procedural and substantive implications that entails. But that approach is not available to the EU-25 (Ireland and Denmark have opted out of this law), who are bound by EU law on non-EU migrants, in particular by the EU’s Long-Term Residence (LTR) Directive. The LTR Directive brings the position of UK nationals resident in the EU-25 within EU law as it provides legal protection to some TCNs. This is a Directive that can be - and has been - enforced before national courts, and is subject to the jurisdiction of the CJEU. (There is also some EU legislation on the position of non-EU citizens who don’t yet qualify for LTR status).

Articles 7 and 8 of the LTR Directive govern the scheme by which long-term resident status is acquired and the residence permit granted. The LTR Directive holds the process to a certain standard, imposes common criteria, requires the grant of LTR status where conditions are satisfied (Article 7 (3), Iida para 39), and guarantees certain rights where applications are successful. Article 7(2), for example, requires applications to be processed within 6 months, and Article 10 states that reasons must be given for decisions.

Subject to certain conditions (outlined below), the Directive confers equal treatment of TCNs to nationals in the host country in numerous areas. These include: access to employment; self-employment; recognition of qualifications; tax benefits; and pensions. The UK’s negotiating position, inasmuch as it fails to offer these matters on a reciprocal basis, appears to assume that this aspect of EU law does not exist.

The entitlements under the LTR Directive (and possibly parallel national laws on long-term residence) are extensive. Assuming that it would be the applicable law if the UK’s proposals were to succeed, or indeed if the UK were to leave the EU without successfully negotiating a withdrawal agreement, this raises a question. The position of UK nationals in the EU-27 would obviously be better if the EU proposal prevailed (particularly for those who do not have long-term residence yet). But how much worse off would UK nationals in the EU-25 be under the UK proposals as compared to the EU’s offer? (The position of UK nationals in Ireland will presumably be a special case because of the common travel area; UK nationals in Denmark would have to rely on Danish law.)

Comparison of EU Proposal and EU Law Position: Long-Term Residence Directive

The EU proposal seeks to maintain the current status of EU citizens in the UK and UK nationals in the EU-27, but without the framework of EU citizenship which is conditional on membership of the EU. By comparison, the LTR Directive has been described as creating a “subsidiary form of EU citizenship”.

The LTR Directive offers TCNs a wide range of rights equal to that of nationals in their host country. It removes Member States’ direct control by outlining that where conditions are met and where there is no Article 6 exception (for public policy or public security), long-term resident status must be granted (Article 7(3)). Ordinary immigration law is not subject to those kinds of external oversights or constraints. However, LTR status remains far from parity with EU citizenship status and, in turn, the EU’s proposal. The material rights are less, the scope is more restrictive, and the acquisition process more arduous.

Equal treatment in respect of social assistance and social protection can be confined to core benefits (Article 11(4)), as defined in the ECJ ruling in Kamberaj. Retention of restrictions to access to employment or self-employed activities where these activities are lawfully reserved to nationals, EU or EEA citizens is also permitted (Article 11(3)(a)). Further, acquiring LTR status does not confer the free movement rights within the EU that its citizens are accustomed to; Article 14 outlines the conditions which must be met to acquire the right to reside in a second Member State for a period exceeding three months. The right to family reunification represents another stark contrast: for TCNs, the highly restrictive Directive 2003/86/EC applies, while the EU proposal guarantees that the Withdrawal Agreement would apply to family members, ‘regardless of their nationality, as covered by Directive 2004/38’. This covers both current and future family members.

Turning to scope, the EU proposal is unequivocal: it captures all 'UK nationals who reside or have resided in EU27 at the date of entry into force of the Withdrawal Agreement', UK nationals who work or have done so in EU27 at that date whilst residing in the UK or another EU27, UK nationals covered by Regulation 883/2004, and (in all cases) their family members. Conversely, Article 3(2) of the LTR Directive outlines numerous exclusions, including TCNs resident due to pursuit of studies or vocational training, seasonal workers, and cross-border service providers.

Further, in exchange for this more limited status, there are a greater number of conditions to satisfy. Beyond its mutual basis with the EU proposal’s requisite 5 years continuous legal residence, the LTR Directive also sets out that TCNs need to: provide evidence that they possess sufficient stable and regular resource to maintain themselves and their family members without recourse to the host Member State's social assistance system; have adequate sickness insurance; and, in some cases, demonstrate compliance with integration conditions imposed by national law. Necessarily, implementation of the UK proposal would therefore subject UK nationals in the EU-27 to a much more demanding application process with likely lower success rates than the more black-and-white EU proposal.

Undoubtedly then, the EU proposal is far more favourable to that offered by the UK. This is not unexpected; while the EU recognises the valuable contribution made by TCNs to the Member States in which they reside, inevitably a proposition vested in the interests of the 3.15 million EU citizens in the UK will comprise a better deal than the residual LTR Directive position. And, for negotiating purposes, offering identical conditions for UK nationals in the EU-27 was necessary.

Nonetheless, were the UK proposal to prevail, its nationals are still afforded better protection than their EU citizen counterparts in the UK. The LTR Directive and Article 7(3) in particular represent a safety net to which the EU-25 are held to account. There is no such equivalent for EU citizens in the UK who, post-Brexit, would be entirely at the mercy of ordinary immigration law were the UK’s position adopted.

Non-reciprocity

There is an undeniable gap between the EU negotiating position and the LTR Directive. However, it is to some extent quantifiable. In contrast, the extent of the chasm between the current position of EU nationals in the UK and the UK’s proposal for their post-Brexit future is not yet known. Moreover, the UK’s silence on numerous existing rights does not bode well. While the comparable certainty of the LTR Directive is enough to be relatively reassuring to UK nationals, those who do not yet qualify for the status will be subject only to national immigration law and thus face the same level of uncertainty as EU citizens in the UK.

It might seem surprising that the UK’s response to the EU proposal is so weak. But perhaps this is somewhat accounted for by the difference in numbers: in comparison to the 3.15 million EU citizens in the UK, there are an estimated 900,000 UK nationals in the EU-27. Most of them do not vote in UK general elections. Perhaps they are the ‘sacrificial lambs’ of these negotiations. But this fails to account for the 60% of UK nationals who want to keep their EU citizenship. (Notably, this number increases by 20% for the up and coming political force that are the 18-24 year olds.) If these polls are to be believed, the UK government has a greater investment in a good deal than their proposals implied they thought to be the case. Lest it further alienate the electorate, the UK government should reconsider the EU’s position, taking into account applicable EU law, and provide an injection of reality into its negotiating stance.

Barnard & Peers: chapter 27

Photo credit: Irish Times

The UK General Election and Brexit: Comparing Party Manifestos

Professor Steve Peers

Tomorrow sees another general election in the UK, just two years after the last one. Since this is (according to the Prime Minister) an election on Brexit, it seems appropriate to review the parties’ views on this issue, including future UK/EU relations. I will examine the parties’ views in turn – focussing on larger UK-wide parties plus (due to its political importance) the Scottish National Party. The final section is an overview and comparison.

Conservatives

The Tory manifesto position on Brexit is largely a summary of the position set out in the Brexit White Paper (discussed here), and the planned Great Repeal Bill (discussed here), which would keep EU law as part of ‘UK law’ for the time being. Essentially, the Tories believe that the future UK/EU relationship should be based on a free trade deal without ‘vast’ payments into the EU budget or free movement of persons. Participation in the customs union and internal market would end, and there are some details about the transition to full separate UK participation in the World Trade Organisation. There’s an objective of continuing security cooperation with the EU, but the details are not spelled out.

Some fair settlement of UK accounts would be made upon departure from the EU, but the Tory policy is ‘no deal is better than a bad deal’ – without spelling that position out further. Fortunately, the UKIP manifesto (discussed below) addresses this point. Unlike UKIP, the Tories do not attempt to ‘sell’ the no-deal scenario – which is just as well considering the concerns about its potential economic damage. Rather there is much discussion of what the positive outcomes of a deal would be.

Future immigration policy would retain an objective of net immigration below 100,000 – which would entail reducing non-EU migration (an issue largely outside the scope of EU law for the UK) as well. This would include further restricting the number of foreign students and family members, despite promises from the Leave side made during the referendum campaign to make it easier to admit UK citizens’ non-EU family members.  

Labour

Labour accepts the result of the referendum but sets out in more detail than the Conservatives what the future UK/EU relationship would look like.  It supports continued relations with Euratom and the single energy market, plus wants to maintain the ‘benefits’ of the single market and customs union without explaining how. Other remarks from the party suggest that it opposes continued participation as such in the single market and customs union, and opposes free movement of persons continuing.

Labour reject the ‘no-deal’ option, support a transitional deal, and list a number of areas where they still wish to cooperate with the EU: research programmes, Erasmus, Europol, Eurojust, the European Arrest Warrant (EAW), climate and anti-terrorism cooperation.  They have a different policy from the Tories on future family migration, as they would waive the strict income requirements for family members rather than tighten them. (There would still be a requirement not to use public funds). They would ‘guarantee existing rights’ of EU citizens in the UK. They set out in detail their future trade policy, insisting on links between trade and other concerns like the environment and human and labour rights.

Liberal Democrats

The LibDems aim for a referendum on the final Brexit deal, and support continued membership of the EU single market (including free movement of people) and customs union. They make specific reference to staying in Erasmus, preserving social and environmental rights, and participating in Europol, the EAW, EU databases, EU research funds, the European health card, abolition of roaming fees, and pat passports. Like Labour, they suggest links in between human rights and the environment in future trade deals. LibDems also give some detail on the position of EU citizens in the UK:

Greens

Similar to the LibDems, Greens propose a referendum on the final Brexit deal, and seek to continue with free movement and the single market. They also wish to guarantee EU citizens’ rights, retain social and environmental safeguards, and link trade deals to other standards.

Scottish National Party

The SNP manifesto views on Brexit reiterate its two key positions: Scotland, or the UK as a whole, to stay in the single market (previously discussed here), and a Scottish independence referendum when the terms of Brexit are known (previously discussed here). They also repeat their support for guaranteeing EU citizens’ rights.

UKIP

Finally, that brings us to the UKIP manifesto. This manifesto gives us an indication of how the ‘no-deal’ scenario hinted at in the Conservative manifesto might play out. UKIP opposes the use of the Article 50 procedure to negotiate with the EU, focussing instead on the purely domestic law change of repealing the European Communities Act. They still aspire to a free trade deal with the EU, however, although they are indifferent to whether they get one – since they also promise to spend the £11 billion “windfall” from tariffs on EU goods. There’s no acknowledgement of the effects on the UK economy of this scenario: indeed, they argue that talk of a “cliff edge” from leaving the EU without a trade deal is “hyperbole”, since trade will still continue. This ignores the obvious prospect that the level of trade will decrease if tariffs and non-tariff barriers are imposed. While they reject the single market and customs union, they want EU/UK trade to continue “on the same basis as present”.

In any event, UKIP not only refuse to make any payment upon departure, they expect the UK to receive a sum from the EU as it leaves. Moreover, they pledge to oppose the existence of customs unions like the EU in the World Trade Organisations – even though the WTO expressly provides for the existence of customs unions, and (as UKIP even acknowledge) the EU is a WTO member in its own right.

Overall then, UKIP expects to receive all the current trade benefits of EU membership, with none of the perceived drawbacks, plus a payment on the way out. All of this while refusing to use the official departure route and campaigning to end the EU’s existence as a customs union and WTO member. If you seek a visual metaphor for how UKIP sees the world, imagine their leader Paul Nuttall – a star football player in his own mind - repeatedly scoring penalties over the heads of 27 massed goalkeepers.

UKIP’s rage against the dying of their light deserves one final paragraph. Their immigration policy includes not just an unreal zero migration target, but also a demand that new immigrants observe UK “values” to be admitted. This from a party who have continually disregarded the basic British values of tolerance, equality and fair play: members have referred to gays causing floods, and repeatedly insulted minorities. Indeed, after the last European Parliament election, to receive EU money UKIP did a deal with a party whose leader denies the Holocaust, and claims that women are inferior and obtain their political beliefs via biological transmission from the men they have sexual intercourse with. Clearly, politics’ loss is gynaecology’s gain.

Overview

There are two broad categories of opinion on the EU in this election, but also important differences within each group. The Liberal Democrats, Greens and SNP want to continue participation in the single market as well as a number of other EU policies. Moreover, all three parties want to offer the option of continued EU membership – the LibDems and Greens by means of a UK-wide referendum on the final deal, and the SNP by means of a referendum on Scottish independence.

The Conservatives, Labour and UKIP all favour departure from the UK without the single market, the customs union and free movement of persons, and aim instead for a free trade deal with the EU. However, these similarities soon end.  Like the first group of parties, Labour would guarantee EU citizens’ rights (in fact, it supports guaranteeing their existing rights, an important nuance), and would seek participation in a number of specific EU measures. The Tories are considerably cooler and less detailed on these issues, and are willing to contemplate a ‘no-deal’ scenario, although they cannot bring themselves to ‘sell’ it. Labour would welcome foreign families and students; the Tories see them as numbers to be reduced.

UKIP offers voters not just one fantasy, but a choice of two fantasies: either a problem-free ‘no-deal’ scenario, or a deal with all of the benefits and none of the supposed drawbacks of EU membership, with a gold watch for UK service to the EU thrown in for good measure. Of course, some would argue that UKIP’s fantasies are simply more explicit than Labour’s or the Conservatives’ – since the EU has made clear in its negotiating position that it is not possible to retain all benefits of the single market for a former Member State which leaves it.

Voters may not wish to make Brexit the main reason for their vote, or may in any event choose to cast a tactical vote against a party they dislike, rather than vote for a party which they most agree with but which has no chance of winning their seat. But it can hardly be said that all parties take the same view on Brexit issues, and the summary above makes clear that for those whose concern is Brexit first and foremost, there is a lot at stake in this election.

Manifestos: Conservatives Labour Liberal Democrats Greens Scottish National Party UKIP

Barnard & Peers: chapter 27

Photo credit: BBC