Trick or Treaty? The legal issues of the second extension of the UK’s EU membership

Professor Steve Peers, University of Essex

With the second Brexit day deadline of April 12 only two days away, last night leaders of EU Member States, meeting as the European Council, decided to grant the UK a second extension of its EU membership, possibly up to Halloween this year. The key provisions in the formal decision extending membership for the second time provide that:

Article 1

The period provided for in Article 50(3) TEU, as extended by the [first extension decision], is hereby further extended until 31 October 2019.

Article 2

This decision shall enter into force on the day of its adoption. 

This decision shall cease to apply on 31 May 2019 in the event that the United Kingdom has not held elections to the European Parliament in accordance with applicable Union law and has not ratified the Withdrawal Agreement by 22 May 2019.

The preamble to the decision also notes that if the withdrawal agreement is ratified, Brexit day could be earlier. More precisely: ‘the withdrawal should take place on the first day of the month following the completion of the ratification procedures or on 1 November 2019, whichever is the earliest’. Also, the preamble calls for a review in June, but doesn’t provide for the possibility of cutting the extension short at that point.

The date of 31 October was not chosen for its scary implications as such: it’s the last day in office of the current European Commission, although this point isn’t explicitly made in the European Council decision. Ending the UK’s membership therefore avoids a UK Commissioner taking office (and so also avoids the awkward question of whether the number of Commissioners should be reduced to prevent this happening).

This fresh extension followed from the previous European Council decision extending membership after the original Brexit Day of March 29, which I previously discussed in detail here (see also the relevant conclusions of the European Council, adopted on March 21). This blog post examines the details and legal issues arising from the second extension, adapting some of the points already made in the previous blog post on the first extension where relevant.

EU law issues

The starting point for discussing extensions of membership is Article 50(3) TEU, which provides, as regards a Member State withdrawing from the EU:

The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

Unanimity can still apply despite abstentions (Article 235 TFEU), and the European Council can, if necessary, act by written procedure (see its Rules of Procedure). (In the event, as with the first extension decision it seems that neither was necessary). The Member State concerned has to agree to the text of the relevant European Council decision, and the UK indeed agreed to the second extension decision, as it had agreed to the first one. There’s no formal role for the European Parliament or national parliaments. Article 50(3) is silent on whether or not there can be multiple extensions, but obviously the EU and UK assume that this is legally possible.

The first extension decision provided for two variations for extending membership beyond the original Brexit Day of 29 March 2019, depending on whether the House of Commons approved the proposed withdrawal agreement by that date. If that had happened, UK membership would have been extended until 22 May 2019. Since it did not happen, the second variation applied: membership was extended for only two weeks to 12 April 2019, and the UK had to ‘indicate a way forward before 12 April 2019, for consideration by the European Council’.

The two dates referred to were linked to the upcoming elections for the European Parliament, on May 23-26, as noted in the preamble to the first extension decision. This is because 22 May is the last day before the elections, and 12 April is the last day to give notice of the poll in the UK. There was a legal debate over whether the UK could be exempted from taking part in these elections (for details, see my blog post on the first extension), on which the EU has taken the view that there cannot be an exception. The second extension decision takes the same approach, forcing an early end to the UK’s EU membership on 31 May if the UK has neither held the European Parliament elections on time, nor ratified the withdrawal agreement by 22 May. However, it should be noted that, as discussed below, the UK has taken the legal steps to hold the elections.

This obligation to hold the elections is a specific application of the general rule: as the preamble to the decision on the second extension confirms that, as in the first extension, the UK has the same rights and responsibilities as it would ordinarily have as a Member State otherwise. Indeed, the preamble explicitly observes that the UK can revoke its notification of intention to leave the EU unilaterally (see the CJEU’s Wightman judgment). This continues the principle established in two earlier CJEU rulings (discussed here and here), in which the Court confirmed that the UK remained a fully-fledged Member State throughout the main two-year period after notifying its intention to leave the EU. In other words: Membership means Membership.

However, the preamble to the second extension decision conversely rows back on this somewhat, in that it also refers to the principle of ‘sincere cooperation’ applicable to all Member States, by virtue of Article 4 TEU. But the wording suggests that this principle might apply differently as regards a withdrawing Member State. More precisely, the preamble states that (emphases added):

The European Council takes note of the commitment by the United Kingdom to act in a constructive and responsible manner throughout the extension period in accordance with the duty of sincere cooperation, and expects the United Kingdom to fulfil this commitment and Treaty obligation in a manner that reflects its situation as a withdrawing Member State. To this effect, the United Kingdom shall facilitate the achievement of the Union’s tasks and shall refrain from any measure which could jeopardise the attainment of the Union’s objectives, in particular when participating in the decision-making processes of the Union.

So the EU says that the UK must be a full Member State for the purposes of the European Parliament elections, but not exactly a full Member State for some other purposes. If only there were a fruit-based or dessert-based analogy to describe this approach.

However, there’s no precise legal obligation attached to the reference to sincere cooperation clause. And what exactly could the UK do to obstruct the business of the EU anyway?  First of all, let’s look at the EU institutions. Member States do not have a veto on the major appointments to the EU institutions to be made later this year: Mr Juncker became Commission President despite the UK’s opposition (joined by Hungary), and Mr Tusk was re-elected as European Council President despite the opposition of Poland.  There’s no veto on appointing the rest of the Commission this autumn either, although Member States do act unanimously when appointing CJEU judges or renewing their terms. As regards the Commission in particular, the implications aren’t fully fleshed out: the UK and UK MEPs will still presumably have a vote for the new Commission, since those votes would normally take place before November 1, but would it follow that also the UK should nominate a Commissioner who might not even take office?

Could the UK obstruct the functioning of those institutions? First, although this is not mentioned in the extension decision, the European Council conclusions note that the EU27 can meet informally without the UK:

the 27 Member States and the Commission, where appropriate together with other institutions, bodies, offices and agencies of the Union, will continue to meet separately at all levels to discuss matters related to the situation after the withdrawal of the United Kingdom

This suggests an informal arrangement, where the EU27 might agree in principle on future developments which will apply after Brexit day, with any legal texts to be adopted officially once the UK has left.

Secondly, it should be noted that the EU institutions do less work than usual between May and October of an election year (ie the term of most of the extension decision), since the European Parliament (EP) focusses on the elections and their aftermath and the outgoing Commission is winding its activities up. But there are some activities. However, the Commission, EP and CJEU do not act by unanimous vote, and the EU institutions’ rules of procedure don’t provide for filibustering (ie discussing an issue endlessly to stop debate). Nigel Farage rarely shows up for long enough to filibuster anyway.

The possibility for obstruction exists more in the Council (made up of ministers) and the European Council (made up of Presidents and Prime Ministers). The Council usually (but not always) decides by qualified majority voting (QMV), while the opposite is true of the European Council.  For QMV, the UK vote has to count in some way (except where the UK opts out), and asking the UK to abstain accomplishes nothing, since UK abstentions would in effect count as a vote against. However, it’s rare that so many Member States oppose a proposal that the UK has the swing vote (for a current example, see the controversial copyright directive, which the UK could block if it abstained or voted against).

The UK could, of course, block everything where it has a veto.  This particularly applies to taxation, accession to the EU, Treaty amendment, foreign and defence policy, and major decisions on the budget. But budget decisions are due to be agreed next year, after the second extension decision will run its course, and applicant Member States are all a long way from joining the EU. While the UK could block steps in the ongoing accession negotiations (like opening or closing ‘chapters’ in the negotiations), the EU27 and the applicant State (like the EU27 internally) might simply decide agree in principle on those steps while awaiting Brexit day.

As regards Treaty amendments, there are no discussions of amendments underway or planned imminently. The UK can’t block any amendment process getting started, but its agreement would be necessary for any Treaty amendments to come into force. If there were interest from other Member States in such negotiations, the UK could abstain from the discussions, and ratification of any agreed text could get underway in the EU27, with the proviso that the process could only be completed on or after Brexit Day.

It’s also possible to use simplified procedures to amend certain parts of the Treaties, but any significant Treaty change by such simplified means still requires unanimity of Member States. Unlike fully-fledged Treaty amendments, simplified Treaty amendments are a live issue. The Commission has proposed extending QMV on aspects of foreign policy, as well as on taxation in general and energy and environmental taxes in particular. (Update: the Commission also proposed to drop unanimity for aspects of employment law on April 16th). The environmental tax paper also suggests giving the European Parliament more powers as regards EU law on nuclear energy, but this requires an ordinary Treaty amendment (which the Commission suggests should happen after 2025). Again, the UK could block these proposals as long as it’s a Member State, while the EU27 could agree on them (if they are interested) in principle pending Brexit day, and adopt them after that.

UK legal issues

The UK gave effect to the first extension as a matter of UK law by means of a Statutory Instrument, in accordance with s 20 of the EU Withdrawal Act 2018, which sets out a process to change ‘exit day’. Some have queried the legality of this process, and there’s a pending court case challenging the first extension (although see the counter-argument by Professor Mark Elliott).

Since the first extension was granted, as noted already, the House of Commons voted down the withdrawal agreement a third time. But there have been other legal developments. The Commons made two attempts to hold ‘indicative votes’ to find a Brexit outcome that would command majority support – but no outcome did. Since the Commons had also indicated its opposition to leaving the EU without a deal, the government changed its strategy of trying to pass the withdrawal agreement with Conservative and Democratic Unionist Party votes.

Instead, as the Prime Minister announced on 2 April, she would instead hold discussions with the Labour party, with a view to amending the declaration on the future relationship with the EU.  She would also seek a short second extension of membership from the EU, while planning to table the bill to implement the withdrawal agreement with a view to ratifying it by 22 May, thus avoiding taking part in European Parliament elections. To that end, on April 5 the government sent a request to the EU for an extension until June 30. Since it is possible that European Parliament elections might have to be held, the government also adopted the order which is legally necessary to hold them on May 23.

Furthermore, Parliament decided to take control of the legislative agenda from the executive temporarily and quickly pass a new law, the EU Withdrawal Act 2019. Among other things, it requires the government to seek an extension of membership from the EU, and on that basis, the Commons approved the government’s motion to set June 30 as the intended date. It also simplifies the process of approving another change to ‘exit day’ in UK law, which will be relevant imminently when giving effect to the second extension decision in UK law. (Update: the secondary legislation changing the exit day to October 31 has since been adopted,) While the passage of the Act attracted controversy, ultimately the outcome differs little from the government’s policy. I’ll leave it to political commentators to discuss the broader political impact of the Act. It should be noted that despite the passage of the Act, one MP, Bill Cash, has queried the legality of a second extension. With respect, his arguments about the frustration of the intent of Parliament ignore the 2019 Act as well as the prospect of extension of membership set out in the 2018 Act. But it would not be surprising to see these arguments litigated.

Finally, it’s useful to consider the second extension decision in its political context, although only a brave observer could argue they know what will happen in UK politics in the near future with any certainty.  An extension to October leaves just enough time for a referendum, and lots of time for a general election. It also leaves enough time for a Conservative party leadership contest, although a new Prime Minister would, without an election, face the same arithmetic in the House of Commons, regardless of their Brexit views. While the Conservative party formally cannot challenge its leader before December, it may try to find a way to do so indirectly. The results of local elections at the start of May and (if held) European Parliament elections at the end of May might alter the political dynamics. A new Queen’s Speech is due in June, which will entail the Conservative party renegotiating its confidence and supply arrangement with the DUP, as well as yet another opportunity to submit the withdrawal agreement to the vote. The delay to Brexit might provide the opportunity to pass further Brexit-related legislation, as well as conclude some ‘rollover’ treaties with non-EU countries.

As for the impact on EU/UK relations, while the second extension decision reiterates that the EU is not willing to reopen talks on the withdrawal agreement, and furthermore states that the extension period should not be used to negotiate the future relationship as such, the European Council conclusions expressly state a willingness to renegotiate the non-binding political declaration on that relationship. Renegotiating the latter depends on successful conclusions of talks between the Conservative and Labour parties, which many believe is an unlikely prospect. A general election might change the situation, but the government is not keen on one. There might remain a lack of a parliamentary majority for anything else (simple revocation, no deal, another referendum) if there’s no election. Time will tell if the UK can find any way out of the current Brexit deadlock.

Photo credit: bored panda

Barnard & Peers: chapter 27

In-Between the Lines of the High Court Brexit Judgment: EU Transnational Rights and their Safeguards

Francesca Strumia, Lecturer in Law, University of Sheffield

This post casts another look at the recent High Court judgment on the government’s power to start the process of UK withdrawal from the EU. It reflects further on the EU law implications of the judgment, beyond the political furore that it has raised and possibly beyond the immediate contingencies of Brexit. The argument is that the judgment, albeit focusing on a question of UK constitutional law, also engages with the problem of safeguards for transnational rights – e.g. rights of British nationals in other Member States- in the process of a Member State’s withdrawal from the EU. Questions that the judgment prompts in this respect bear on EU law from three distinct perspectives that warrant closer analysis.

The immediate question that the judgment solves is whether the executive can rely on its prerogative powers covering international relations to give notice of withdrawal from the European Union under article 50 TEU. This is a question of UK constitutional law, as is the answer offered by the High Court: the executive can do no such thing. This is – the constitutional law argument goes – in good part because the exercise of prerogative powers cannot encompass alteration of domestic laws. Whilst withdrawal from the EU through the article 50 process will inevitably affect a large body of law that has become domestic through the 1972 European Communities Act (ECA).

In particular, the High Court, building on the parties’ submissions, distinguishes three classes of EU law rights that have gained domestic law status (par. 57-61). A first class includes rights that could be replicated in UK law following withdrawal from the EU, such as rights descending from EU employment law. A second class includes rights that British nationals enjoy in other EU Member States, such as the right to reside and work. A third class includes rights, such as the right to vote for the European Parliament or to trigger preliminary references at the CJEU, that are not capable of replication in domestic law following withdrawal from the EU. According to the High Court, it was Parliament that, through the ECA, brought into effect these three classes of rights (par. 62-66). And thus none of the three classes can be repealed through the executive prerogative powers (par. 92).

The reasoning flows as to classes one and three. However, it runs into some difficulty as to class two. Rights in this class are, in effect, transnational rights: they are grounded in EU law, and ultimately descend from UK membership in the EU, but they are implemented through the domestic law of other Member States, and they are enforced in the courts of other Member States. They are not UK domestic law. The High Court nonetheless files them together with the other two categories. Parliament knew and intended that as a result of the ratification of the Treaties – the argument goes – British citizens would have these rights enforceable in other Member States. This knowledge and intention on the part of Parliament is tantamount to Parliament ‘creating’ relevant rights (par. 66). As a result, the High Court decides that neither rights in classes one and three – that have been introduced in domestic law – nor rights in class two – that are ‘wider rights of British citizens’ descending from the Treaties, can be undone by royal prerogative without Parliament’s intervention (par.92).  Under cover of the same legal argument, the High Court achieves here two different results. In respect of rights in classes one and three, it applies the constitutional argument that the executive through the royal prerogative cannot alter domestic law. In respect of rights in class two, it further recognizes Parliament’s, rather than the executive’s, responsibility for altering a set of transnational rights grounded in EU law.

While the distinction is subtle, it has repercussions beyond the constitutional argument that is at the heart of the judgment. This angle of the High Court’s decision engages, albeit without explicit acknowledgment, the broader question of the necessary safeguards for transnational rights in the context of withdrawal of a Member State from the EU. The question links to EU law from three perspectives: it is grounded in the very nature of EU law; it may have a EU law answer; and the answer, whether grounded in EU law or in national choices, is bound to affect the prospects of EU law.

In the former sense, EU law has a hybrid nature: it is neither just Treaty law, nor fully domestic law, and it encompasses transnational rights. The High Court recognizes on the one hand this peculiarity of EU law as one of the distinctive legal features of the case it is hearing: principles of EU law weave a direct link between rights and obligations arising from governmental action at the international level and the content of domestic law (par. 34). On the other hand, the existence of transnational rights as part of EU law complexifies the legal issues surrounding withdrawal of a Member State. Beyond the international obligations and domestic rights that withdrawal affects, what of the transnational rights that depend on the Treaties but have vested and are enjoyed in the domestic law of Member States beyond the withdrawing one?  Are there any legal barriers to erasure of the latter rights, or are these at the disposal of the executive and/or of political decision? The question of safeguards is particularly important with regard to transnational as opposed to other classes of rights that a Member State’s decision to withdraw may affect. Holders of relevant rights may not have a voice in the political process that determines a Member State’s decision to withdraw. The High Court’s solution in this respect is to construe a set of such transnational rights – rights of British citizens enjoyed in other Member States - as domestic rights. As a result it subjects the process and conditions of their repeal to some checks and balances rather than leaving them to be washed away by government action at the international level.

The finding that transnational rights are domestic law is a dictum, and the High Court’s offered solution is but an accident of its decision on the main constitutional question. It may succumb, together with that decision, in the context of Supreme Court review. Yet, the High Court’s treatment of the issue points to a further EU law question that the Supreme Court may have to consider: whether EU law itself requires any peculiar safeguards for transnational rights as part of a Member State’s decision to withdraw. The Treaties provide scant guidance. Article 50 allows any Member State to decide to withdraw ‘in accordance with its constitutional requirements’. On its face, the text does not leave much room for EU law safeguards of any peculiar categories of rights in the process of making such decision. Yet there may be a question as to whether the duty of sincere cooperation under article 4(3) TEU, which of course binds an exiting Member State up until the point of effective withdrawal, constrains that process of decision making envisaged in article 50. Article 4(3) requires, among others, that a Member State facilitate the achievement of the Union’s tasks and refrain from jeopardizing the attainment of the Union’s objectives. Could this requirement be read to mandate peculiar safeguards, in the process of deciding and triggering withdrawal, for the position of minorities and of disenfranchised stakeholders whose rights and interests the EU purports to protect? Probably a stretch, but possibly another question that the CJEU may need to hear.

Finally, whether mandated by EU law or driven by autonomous constitutional arguments, the types of safeguards granted to transnational rights in the context of the process of deciding and setting in motion withdrawal affect the very prospects of EU law. This is a body of law that several theorists, from Philip Jessup to Kaarlo Tuori, have identified as a first concrete example of transnational law. Secession from a transnational law system, and its impact on laws that cut across borders, represent an important testing ground for the credibility and reliability of that system of law.  The point is not denying the voice of any democratic majority, or stopping Brexit. Or siding with Varoufakis’ argument that the EU is like Hotel California – one can check out, but can never leave -. The point is that the process of withdrawal, albeit set in motion by the decision of a democratic majority, has repercussions well beyond the jurisdiction and reach of that majority. First, it impinges on the status and rights of constituencies, who in the relevant democratic process were anything but disenfranchised. Second, it strips participating but opposed minorities of their transnational rights without appeal. The way these constituencies and minorities, as well as their interests will be taken into account in the decision, and process, of withdrawal will tell a telling tale as to the democratic credentials, and legitimacy of EU transnational law. In this respect, the choices of a withdrawing Member State with a strong tradition as a constitutional democracy subject to the rule of law (par. 18 of the High Court judgment) have a precedent to set, and bear responsibility, well beyond the contingencies of Brexit.

Barnard & Peers: chapter 27

Photo credit: bbc.co.uk

Scotland and Brexit: Brave Heart or Timorous Beastie?

Steve Peers

At the Scottish National Party (SNP) party conference yesterday, Scotland’s First Minister (Nicola Sturgeon) announced that the Scottish Government would issue a draft of a second independence referendum bill next week. She also announced that the Scottish government would soon table an alternative plan “to protect Scotland’s interests in [the EU] and keep us in the single market – even if the rest of the UK decides to leave”. This would entail “substantial additional powers for the Scottish Parliament”, namely all the Scottish powers that “currently lie with the EU – and significant new powers”, namely the power to negotiate international treaties and “greater powers over immigration”. 

Implicitly the Scottish government is offering the UK government a choice: negotiate to ensure that Scotland stays in the single market as a distinct part of the UK, or face another independence referendum. I’ll examine the legal issues arising from these two options in turn, and conclude with some broader observations about the Brexit process compared to the prospect of Scottish independence.

Scotland in the UK – and the single market

Is EU single market participation possible if a) Scotland stays in the UK, and b) the UK as a whole is not in the single market anymore? Some people have called this prospect a ‘reverse Greenland’, referring to the deal whereby Greenland left the EU but Denmark stayed in. Given the huge differences between Greenland and Scotland, I suggest we call this idea by a different name: say the ‘Scottish Economic Area’. I have written about this prospect separately in iScot magazine, but I will summarise my points again here.

Only independent countries which are EU members can fully participate in EU membership. But in theory at least, a part of a non-EU country could participate in the internal market, even if the rest of that non-EU country did not. Of course, the EU and the UK’s Westminster government would have to consent to this in as part of their post-Brexit treaty, and it could only work if there was significant related devolution to Scotland, as the First Minister suggested.

What would it mean in practical terms? The ‘single market’ consists of the free movement of goods, services, persons and capital, which includes the freedom of establishment of companies and the self-employed. To facilitate all this, there’s extensive EU legislation setting common standards for many industries. The single market also includes common rules on competition law and state aid to industry. But a number of rules on other matters (such as trade with non-EU countries) are not necessarily part of it. Full participation in the single market goes further than a free trade agreement with the EU which the Westminster government currently seems likely to prefer, as it will abolish more non-tariff barriers to the trade of goods and services. For instance, most free trade agreements don’t give as much access to financial services markets as single market participation does. So if Scotland is in the single market and the rest of the UK is not, more financial services businesses may stay in Edinburgh, or move from London to Edinburgh rather than to the EU.

Is this feasible in practice though? The easy part would be applying EU laws in Scotland which only have domestic effect, like consumer, environmental and labour law.  When it comes to laws with a cross-border effect on trade between Scotland and the EU, such as financial services market access, it would be necessary to define exactly when a firm was based in Scotland (benefitting from single market participation in the Scottish Economic Area), and when it was based in the rest of the UK (subject to a less favourable trade agreement).

The most difficult issues relate to movement of goods and people. Would different rules on Scottish/EU relations compared to the relations between the EU and rest of the UK mean that there would need to be border controls between Scotland and the rest of the UK? On this point, the Westminster government has promised there will be no border controls between Northern Ireland and the Republic of Ireland, even though that border will become an EU/non-EU border.  Surely whatever deal is reached to this end could be adapted for use at the Scotland/England land border too.

The Scottish government would not have a direct role in EU decision-making. But it could be given the same role as Norway and Iceland have in their single market treaty with the EU (discussed further below): consultation on proposed EU laws, the power to reject them (although that’s subject to the risk of retaliation), and participation in the EFTA Court that decides on single market disputes as regards Norway and Iceland. 

The suggestion above is undeniably complex, although the whole Brexit process is complex anyway. However, the idea isn’t all or nothing: it would be possible in theory for Scotland to participate fully in parts of the single market, rather than all of it like Norway and Iceland.

Independent Scotland

There are two possibilities here: a) Scotland as a member of the EU, and b) Scotland as a non-member of the EU, but with a close relationship with it – possibly closer than the remaining UK (rUK). It is also possible that the latter option could be an interim step towards full EU membership. Obviously any new independence referendum raises issues besides Scotland’s relations with the EU, but I will focus on that point.

Scotland as an EU Member State

I blogged on this issue in 2014, during the Scottish referendum, but I’ll summarise and elaborate on those views again. The basic point is that the Treaties list the Member States by name, and since the ‘United Kingdom’ is unlikely to be interpreted as automatically referring to Scotland alone, either an accession Treaty or a Treaty amendment is necessary to include Scotland’s name as a member. In the past an accession treaty (as provided for in Article 49 TEU) has always been used to add a new name; this would entail a negotiation process, which could possibly be fast-tracked in light of Scotland’s existing de facto EU membership as part of the UK.

However, that would raise awkward questions, since the EU usually requires new Member States to apply Schengen and the single currency, and might be unlikely to extend a share of the UK’s budget rebate to Scotland. Having said that, a number of Member States have got away with not applying the single currency in practice.  It should be noted that the ‘deficit criteria’ which apply to joining the single currency are not applied as a condition of EU membership, but only when a Member State subsequently applies to join the single currency itself.

The alternative route to membership is by Treaty amendment (as provided for in Article 48 TEU), which could also entail an amendment to Article 49 TEU to refer to the special case of Scotland: “By way of derogation from the above paragraphs, Scotland shall accede to the European Union pursuant to the Treaty of Culloden”.  One possibility is a Treaty amendment which simply replacing the words “United Kingdom” wherever it appears in the Treaties with “Scotland”; this would mean that Scotland retained the UK’s opt-outs from the single currency, justice and home affairs and Schengen (the rebate is set out in secondary legislation).

When I suggested this possibility on Twitter a few months back, it was ridiculed by some as a “Tippex” approach to amending the Treaties. But as a matter of legal drafting, it is perfectly feasible, and there is a firm precedent in the Treaty of Lisbon, which in Article 2(2) to 2(8) provides for a whole host of amendments just like this: replacing “Community” with “Union” wherever it appears, for instance.   

Undeniably, however, either approach requires unanimity between Member States, and so there would be a political risk that accession or amendments are not easily agreed. In particular, some have argued that there is a risk of a Spanish veto, because of concerns that Scotland obtaining easy EU membership would inflame separatist tensions in Spain or other countries. On the other hand, some have argued that these concerns are misplaced. Either event also raises timing issues: what happens if Scotland is independent before or after Brexit, but is not yet immediately an EU Member State? The gap could be filled, at least in the interim, by some other arrangement between Scotland and the EU – an issue to which I now turn.

Scotland as a non-EU Member State

The most obvious route for Scotland to consider would be membership of the European Economic Area (EEA), along with Norway, Iceland and Liechtenstein. The EEA provides for participation of these non-EU countries in the EU’s single market freedoms and all the EU legislation related to them, as well as most EU employment and environmental law. But Scotland would not be covered by EU laws in other areas, notably agriculture, fisheries, tax and justice and home affairs – although, like Norway and Iceland, it could sign separate treaties with the EU on these issues. Although the current EEA countries have joined Schengen, this is a separate issue (agreed years after the EEA), and Scotland would have no legal obligation to do the same.

There would be no obligation to join the EU single currency, and most significantly Scotland would be free to sign separate trade agreements with non-EU countries, because the EEA does not cover the EU’s customs union. This is particularly important because it means Scotland could seek to retain a closer economic relationship with the rUK than the rUK might have with the EU. Scotland could also “go global”, as Brexiteers say, by signing up to the free trade treaties already signed by members of the European Free Trade Area (EFTA: the EEA states plus Switzerland) with non-EU countries. And it would retain power to sign its own treaties on top (or to seek to retain its own versions of the EU’s free trade deals with non-EU countries, as the rUK is likely to do). Scotland would have to become a separate WTO member, but could try to fast-track this by copying the rUK’s process of detaching from the EU’s WTO membership.

Is there a downside to EEA participation? Some have argued against the UK joining the EEA due to objections to single market participation, the need to accept ECJ jurisdiction, continued contributions, its undue size compared to other members, or its lack of influence over EU laws which would apply to it. Are these arguments transferable to Scotland? The first to third objections are not, since Scots voted to remain in the EU, entailing the single market, ECJ jurisdiction and budget contributions anyway. (In fact, the non-EU EEA countries are not subject to the jurisdiction of the ECJ, but a separate body called the EFTA Court: it usually follows ECJ case-law, but its decisions are not always binding. EEA financial contributions do not go straight to the EU budget, and would logically be recalculated in light of Scotland’s economic position anyway).

The fourth objection (size) is unconvincing: Scotland is broadly comparable with Norway, in particular in terms of population, location and economy. Finally, EEA states have a modest say on EU laws, being consulted on draft EU legislation and having the option to reject the application of new EU laws (although the EU might retaliate if they do that). Anyway, this is certainly more say over EU laws than Scotland would get after Brexit as part of the UK. In fact, it’s more say than Scotland gets over EU laws while the UK is an EU Member State – given the marginal influence that Scotland has over anything that the UK government does.

So the EEA option includes things that Scotland seeks (single market participation) while steering clear of things it may wish to avoid (the single currency and deficit criteria, Schengen, EU trade policy with non-EU countries, and EU fisheries policy).  It also has the advantage of being potentially speedier: the EU can decide to apply treaties with non-EU countries provisionally, pending national ratification.

What about the prospect of a ‘Spanish veto’ over Spain joining the EEA? Here we have actual evidence to suggest that it’s not very likely. For the EU has recently concluded an association agreement with Kosovo – despite Spain (and four other Member States) refusing to recognise the independence of that country after its unilateral declaration of independence. (Note: the EEA is also an association agreement, and Member States have a veto over the initial conclusion of such treaties).

Failing EEA membership, Scotland could still seek other forms of relations with the EU which may be closer than the rUK might enjoy, possibly as a non-EEA member of EFTA like Switzerland. Unless Scotland followed Turkey in joining the EU’s customs union, this would again leave it free to simultaneously retain a strong economic relationship with the rUK.

Scottish independence and Brexit

Could the Brexit process be relevant for the Scottish independence debate – by analogy, or a part of a broader political dynamic? Certainly many of the arguments of Brexiteers – now taken over by the whole Westminster government – could be easily adapted to the Scottish debate. For instance, independence would allow Scots to ‘take back control’ of far, far more of their laws and finances than leaving the EU will do for the UK.

We can also make direct comparisons with certain issues. Does Scotland have a veto on UK tax laws, like the UK does in the EU? No. Does Scotland agree to over 90% of laws passed in Westminster, like the UK does in the EU? No. Does Scotland have a veto on UK defence policy, like the UK does in the EU? Hell, no.

The impact of Brexit on the UK economy can be argued both ways. If Brexit seems to be benefiting the UK, then arguably this shows Scottish independence is unnecessary; but equally it arguably shows that it could also be painless. If Brexit seems to be hurting the UK, then arguably this shows Scottish independence is needed to escape; but equally it arguably shows that independence could be even more painful.

It’s certainly now ridiculous to argue (as it was in 2014) that Scotland should stay in the UK if it wants to stay in the EU. Leaving the UK won’t automatically mean joining the EU, as discussed above; but staying in the UK now certainly means leaving the EU. While independence will likely be disruptive, Brexit will entail disruption anyway, so it’s now arguable which is the ‘riskier’ and which the ‘more stable’ choice. The plummeting pound may no longer be quite so attractive a currency to retain.

Adapting the words of Brexiteers, the rUK would have an economic incentive to quickly reach new trading arrangements with Scotland. And if they refuse to, as an attempt to punish Scots, then, again in the Brexiteers’ own words, who would want to stay in a Union that treats you like that?

Given the changes in the UK since 2014, there is a strong case that another independence referendum is justified. How would Scots have voted then, if they knew that a “Yes” vote would lead to “hard Brexit” in a few years’ time?

As things stand, the current UK government has not suggested any new devolved powers for Scotland, and still less any fundamental change to the UK’s constitutional structure. It has promised to consult the Scottish government over Brexit, but not to provide for differential links with the EU. It has prioritised a very low net migration target over the country’s economic interests; it has refused to allow control by the Westminster parliament (never mind Holyrood) over the form that Brexit takes; it treats EU citizens in the UK as “bargaining chips”; and it aims to slash foreign students, expel foreign doctors and (at one point) to name and shame employers of foreign workers. It has made no attempt to reach out to the large minority of British voters – and the large majority of Scots – who voted “Remain”. Quite the reverse: its media allies refer to critics of Brexit as traitors who should be silenced and imprisoned.

If there is another referendum, Scots will have to decide if they would still be “better together” under these circumstances.  

Barnard & Peers: chapter 27

Photo credit: http://www.businessforscotland.co.uk/an-independent-scotland-would-get-a-better-deal-from-the-eu/

When can EU citizens be expelled from the UK after Brexit? The Human Rights Dimension

Matthew White, Ph.D candidate, Sheffield Hallam University

Following the EU referendums result to leave, David Cameron announced his resignation without invoking Article 50 of the Treaty of European Union. Already highlighted by Professor Steve Peers that the biggest issue in human terms, is what happens to EU citizens in the UK, and UK citizens in the EU. Peers advocated for an EU/UK withdrawal treaty that would contain a specific clause which would be legally binding, that defined the exact scope of the rule, which could also be supplemented by further measures, and must be fully applied in national law.

Prime Minister, Theresa May, according to the Guardian, had previously stated that ‘the rights of EU migrants to remain in the UK will be in play in the talks’ which Patrick Wintour interpreted as ‘without a deal, tens of thousands of Europeans could be thrown out of the UK.’ May’s position on the matter has not shifted, and even gained more weight when Phillip Hammond, according to the Spectator on the Today programme uttered:

Well look, I think we need to have a comprehensive negotiation with our EU partners, including around freedom to move, freedom to work, freedom to study and freedom to settle. And I hope we will be able to get to a position where are able to say to those EU nationals who live in the UK, and to those Brits who live in EU countries: everything’s fine, you can stay as you were. But we cant assume that. We’ve got to negotiate that with our former EU partners…. It would be absurd to make a unilateral commitment about EU nationals living in the UK without at the very least getting a similar commitment from the EU about British nationals living in the EU.

The concerns about this possibility have been exacerbated by today's suggestions from the Prime Minister that EU doctors will be expelled in future. It is accepted that this would be a worst case scenario, but if such a drastic measure of deportation of EU citizens en masse were to occur, what would be the legal consequences of such expulsion?

Article 8:

Assuming that the UK does withdraw from the EU and (as recently announced) repeal the European Communities Act 1972 (ECA 72) and the rights and obligations that come with it, EU citizens would more likely than not have to rely on the European Convention on Human Rights (ECHR). PM May had previously insisted that the UK should withdraw from the ECHR but has since retracted, and the new Home Secretary, Liz Truss seeks to replace the Human Rights Act 1998 (HRA 98) with a British Bill of Rights. This has been regarded by Conor Gearty as a bad idea and in any event would not affect the right of petition to Strasbourg, although it would make it more difficult to enforce ECHR rights in UK courts.

In relation to the context of this post, the principal right in question is Article 8, which stipulates that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

An EU citizen would first have to establish that Article 8, i.e. their private, family life, home etc was (or would be) engaged by the interference of (pending) deportation/removal. If this is established, it is then for the state to justify why this is legal, necessary and proportionate on the basis of national security public safety etc. In Chapman v UK (Application no. 27238/95) the European Court of Human Rights (ECtHR) considered the question of the removal of the applicants from their home, who had established it unlawfully. The ECtHR noted that whether the homes were established lawfully or unlawfully was highly relevant to the proportionality of the requirement to leave it. They continued, if the home was established lawfully ‘this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move’ (para 102). This would pose an obstacle to any plans to remove EU citizens who had lawfully established their home in the UK. The ECtHR also noted that less weight would be attached to those that had established their home unlawfully (para 102) meaning that it would still be relevant, but to a lesser degree.

In Moustaquim v. Belgium (Application no. 12313/86) the ECtHR maintained that separation of a Moroccan national from his family (parents and siblings, three of whom were born there (para 9) for more than five years by the Belgian authorities interfered with Article 8 (para 36). An important principle of this case despite the ECtHR finding a violation of Article 8 (para 46) (and despite the applicant committing 147 offences as a minor (para18)) was that the ECtHR recognised that states had ‘as a matter of well established international law and subject to their treaty obligations, the right to control the entry, residence and expulsion of aliens’ (para 43). Though this case does not specifically deal with EU citizens who have committed an offence, it does highlight that even committing one does not mean deportation is necessary.

Article 8 also places certain obligations on states to keep families together, which can be ‘positive’ (actively doing something) and ‘negative’ (refraining from doing something). In Gul v Switzerland (Application no. 23218/94), a Kurdish asylum seeker, his wife and child who resided in Switzerland wanted to be reunited with a child that stayed behind in Turkey. The ECtHR held that because there were no obstacles in preventing family life in Turkey, Switzerland had not failed to fulfil its obligations under Article 8 (para 42-43). This highlights the difficulties EU citizens would face if they had relatives in another country whom they wanted to be reunited with in the UK. 

The ECtHR, did however, distinguish this from Berrehab v Netherlands (Application no. 10730/84) which concerned a Moroccan national who wanted to keep in contact with his Dutch-born child after a divorce with his Dutch-born wife. The ECtHR established that by the very fact of the child’s birth, ‘family life’ had been established irrespective of whether the parents were living together (para 21). The ECtHR were also quick to dismiss claims that ties were broken between Mr. Berrehab and his daughter because he had visited her four times a week for several hours at a time (para 21). 

The ECtHR then considered whether the refusal of an independent residence permit was necessary in a democratic society, it was noted that Mr. Berrehab was not seeking admission into the Netherlands for the first time, but was a person who had already lawfully lived there for several years, who had a home and a job there, and against whom the Government did not claim to have any complaint. The ECtHR further noted that Mr. Berrehab already had real family ties there - he had married a Dutch woman, and a child had been born of the marriage (para 29). Regarding the relationship with the child, the ECtHR noted that Mr. Berrehab had been close with his daughter for several years, expulsion would threaten this which heightened the degree of seriousness because of the need of Mr. Berrehab daughter to keep in contact with him, given her young age (para 29). On these facts, the ECtHR found the Netherlands to be in violation of Article 8. This demonstrates that individual circumstances of each EU citizen would be key in determining whether or not they should be removed, this intensifies when children are involved, and more so if they are very young.

In Slivenko and others v Latvia - 48321/99 [2003] ECHR 498 a case regarding removal, the ECtHR highlighted that:

They were thus removed from the country where they had developed, uninterruptedly since birth, the network of personal, social and economic relations that make up the private life of every human being. Furthermore, as a result of the removal, the applicants lost the flat in which they had lived in Riga...In these circumstances, the Court cannot but find that the applicants' removal from Latvia constituted an interference with their “private life” and their “home” (para 96).

The ECtHR found a violation in this case (para 129), but the importance of this is that it would be more difficult for the UK to remove EU citizens who have made a life for themselves within the UK.

A further point about EU citizens that work in the UK would be what the ECtHR stated in Niemietz v Germany (Application no. 13710/88) ‘[r]espect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.’ The ECtHR went further by adding that ‘"private life" should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world’ (para 29).

On a domestic level, in the case of UE (Nigeria) & Ors v Secretary of state for the Home department [2010] EWCA Civ 975 the Court of Appeal were tasked with determining the question of:

When the decision-maker is carrying out the balancing exercise required to determine whether removal is proportionate in an Article 8 case, is it relevant on any basis that the person in question is of value to the community in the United Kingdom, a value of which that community would be deprived if he were to be removed? (para 8).

Sir David Keane considered both ECtHR and domestic jurisprudence noting how both make references to the striking a fair balance between the individual and the general interests of the community (paras 13-17). In considering that courts should not be too restrictive in determining what is relevant to immigration controls, Sir David Keane noted that:

[A] a public interest in the retention in this country of someone who is of considerable value to the community can properly be seen as relevant to the exercise of immigration control. It goes to the weight to be attached to that side of the scales in the proportionality exercise. The weight to be attached to the public interest in removal of the person in question is not some fixed immutable amount. It may vary from case to case, and where someone is of great value to the community in this country, there exists a factor which reduces the importance of maintaining firm immigration control in his individual case. The weight to be given to that aim is correspondingly less. (para18).

When referring to Bakhtaur Singh v. Immigration Appeal Tribunal [1986] UKHL 11 where as Sir David Keane made note, the House of Lords unanimously held that when deportation was being considered under the Immigration Act 1971 and the Immigration Rules, both the Secretary of State and appellate bodies had to include amongst the relevant circumstances, the value to the community in the United Kingdom of the individual in question. This was to ensure a balance in "the public interest" against any compassionate circumstances of the case (para 21). Sir David Keane also referred to Lord Bridge (page 917 C-E) who noted a few examples of such value, ranging from an essential worker in a company engaged in a successful export business or a social worker upon whom a local community depended or a scientific research worker engaged on research of public importance (para 21). Sir David Keane admitted these cases were not Article 8 cases (and was ruled before the Human Rights Act 1998  came into force (para 21)) but that it would be surprising if the balancing exercise required by Article 8 was narrower than a statutory discretion. This was so, particularly in the context of the ‘public interest’ element of immigration control (para 22), therefore concluded that value to the community is relevant to the assessment to an extent of the public interest in removal (para 24 and 35) and the examples given by Lord Bridge were not exhaustive (para 36). Ultimately, the appeal was allowed and remitted back to the Upper Tribunal to consider the matters discussed.

This issue was further addressed in Zermani, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 1226. Here, the claimant despite overstaying and creating forged passports (and was sent to prison for said offence) relied on his contribution to the community to prevent his removal or at least proper consideration of his contribution. The claimant relied on letters affirming his value and character from groups including the local Council, Bangor University, the local Mosque, the Welsh Refugee Council, a refugee support group, and the Police (paras 4-14). HHJ Worster was referred to three cases decided by the Outer House in Scotland, dealing with this matter. The first, SM v SSHD [2012] CSOH 172 concerned a sound technician, who relied upon the accumulation of private life, despite unlawfully overstaying. The claimant’s application was supported by 14 letters of support describing his contribution (para 12). However, Lord Stewart noted although relevant, this would not have changed the decision made, referring to Lord Bridge’s examples with an emphasis the lawfulness of businesses and employment (para 17). The second and third cases, David Ndagijimana v SSHD [2014] CSOH 14 and MK v SSHD [2015] CSOH 13 respectively, both dealt with claimants who had overstayed, and in both the public interest in removal outweighed their contribution to the community. However, in Zermani, HHJ Worster was of the opinion that the supplementary decision did not fully take into account (paras 46-49) of the applicants ‘quite out of the ordinary’ (paras 35 and 49) contribution to the community and thus quashed the decision. These lines of cases demonstrate that if EU citizens can demonstrate their value to the community, this would add another hurdle to any prospects of removal.   

Even when removal is based on national security grounds, the ECtHR may find violations if the legal underpinning for such measures are insufficient. In Aristimuño Mendizabal v France (Application no. 51431/99) (in French) the applicant, a Spanish national complained of the temporary residence permits, whose duration varied from a few weeks to a year, over a 14 year period. The applicant highlighted the precarious situation they were put under, unable to obtain a stable job, long-term employment, poverty and significant social problems (para 60-61). The ECtHR highlighted that while the ECHR does not guarantee ‘the right of a person to enter or reside in a State of which he is not a citizen or not be expelled’ (para 65) or ‘guarantee to the person the right to a particular type of residence permit (permanent, temporary or otherwise) provided that the solution proposed by the authorities enables it to exercise unfettered rights to respect for [Article 8]’ (para 66). However, because the applicant was an EU citizen, the ECtHR decided that Article 8 should be ‘interpreted in the light of Community law and in particular the obligations of Member States regarding the entry and residence rights of EU citizens’ (para 69). The ECtHR felt that the precarious situation of the applicant amounted to an interference with Article 8 (para 72). After consider EU law (para 74-78). Ultimately concluding that ‘the period of over fourteen years taken by the French authorities to issue a residence permit to the applicant was not provided by law, the "law" in question is French or Community, and that there has been a violation of Article 8’ (para 79). This is an important consideration given that the UK may remain party to the EEA which would involve free movement of some form whilst also highlighting the issue of leaving EU citizens in a state of uncertainty.

Supplementing Article 8:

The above does not consider every aspect of Article 8 in the immigration context, but it is suggested that Article 4 of Protocol 4 (A4P4) of the ECHR can supplement Article 8. A4P4 stipulates that:

‘Collective expulsion of aliens is prohibited.’

First and foremost, however, it must be noted that the UK, has not, to date, ratified A4P4 nor is it incorporated into UK law through the Human Rights Act 1998. This means that it cannot be enforced through UK courts and neither does the ECtHR have the jurisdiction to consider based on it not being ratified.

However, in Demir and Baykara v. Turkey - 34503/97 [2008] ECHR 1345 the GC, significantly highlighted that:

The Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values. The consensus emerging from specialised international instruments and from the practice of contracting States may constitute a relevant consideration for the Court when it interprets the provisions of the Convention in specific cases.

In this context, it is not necessary for the respondent State to have ratified the entire collection of instruments that are applicable in respect of the precise subject matter of the case concerned. It will be sufficient for the Court that the relevant international instruments denote a continuous evolution in the norms and principles applied in international law or in the domestic law of the majority of member States of the Council of Europe and show, in a precise area, that there is common ground in modern societies. (para 85-86).

This ‘continuous evolution in the norms and principles applied in international law’ can ben expressed by Judge Pinto De Albuquerque in his concurring opinion in Hirsi Jamaa that:

The prohibition of collective expulsion of aliens is foreseen in Article 4 of Protocol No. 4 to the European Convention on Human Rights, Article 19 (1) of the Charter of Fundamental Rights of the European Union, Article 12 (5) of the African Charter on Human and People’s Rights, Article 22 (9) of the American Convention on Human Rights, Article 26 (2) of the Arab Charter on Human Rights, Article 25 (4) of the Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms and Article 22 (1) of the International Convention on the Protection of the Rights of All Migrants Workers and Members of Their Families. (see also OHCHR Discussion paper: Expulsions of aliens in international human rights law, September 2006 (page 15-16)).

Therefore, these bodies of international law establish a prohibition of collective expulsion. The question then becomes, how does one enforce a Protocol that has not been ratified and cannot be used in domestic courts? In short, you do not. What one can do is apply it to a right that can be enforced whether by the ECtHR or domestic courts. Judge Ziemele in his concurring opinion in Lalmahomed v Netherlands - 26036/08 [2011] ECHR 338 discussed the passage from Demir and Baykara noted that:

However, if we were to follow the literal meaning of what the Grand Chamber said, it might suggest that in our case, even though the Netherlands has not ratified Protocol No. 7, since it does provide for a leave-to-appeal system of sorts the Chamber should have assessed whether the leave-to-appeal system as such complied with Article 6. After all, the applicant did complain that the domestic law governing this procedure was contrary to the Convention.

It is therefore suggest that on this basis, collective expulsion constitutes an inherent element (para 147-155) of the right to respect of private, family life and home. This is so because in the removal or prevention of entry context, the state has to take into account individual circumstances before making a decision, not respecting this opens them up to challenge. This could in turn supplement the Article 8 rights of those EU citizens who may be removed on an arbitrary basis.

It is therefore important to consider some cases concerning A4P4. In the case of Čonka v. Belgium (Application no. 51564/99) Slovakian nationals of Romany origin, described how they had fled from Slovakia because they had been subjected to racist assaults, with the police refusing to intervene. They had been arrested with a view to their expulsion after they had been summoned to complete their asylum requests. The applicants complained, about the circumstances of their arrest and expulsion to Slovakia. In interpreting A4P4, the ECtHR maintained that ‘collective expulsion’ is understood to be any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group (para 59). The ECtHR highlighted that the only reference to the personal circumstances of the applicants was that their stay in Belgium had exceeded three months (para 61). The ECtHR found a violation because Belgium, at no stage demonstrated that the personal circumstances of each of those concerned had been genuinely and individually taken into account.

The principle from this is that if PM Theresa May, creates a law that would expel EU migrants on the basis of residing within the UK for less than a specified period of time (or some other ill-defined basis), could open the UK up to challenges before the ECtHR. This could be used to supplement Article 8 (as will be discussed below).

Moreover, when it comes to EU migrants wishing to enter the UK, an ill-defined law on entering could also pose problems. In the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09) Somalian and Eritrean migrants travelling from Libya had been intercepted at sea by Italian authorities, then subsequently sent back to Libya. The first question before the GC was whether when Italian authorities sent the applicants back to Libya, they were within Italy’s jurisdiction for the purposes of Article 1 (securing the rights of everyone under a State’s jurisdiction). The GC felt that removal placed the applicants under the continuous and exclusive de jure and de facto control of the Italian authorities (para 81) and therefore within the ambit of Article 1 (para 82).

Prior to Hirsi Jamaa the GC noted that case law regarding A4P4 had mostly concerned removing individuals within national state territory (para 167). However, the GC took the unprecedented step of considering A4P4 applicability of expulsion outside national territory to ‘ascertain whether the transfer of the applicants to Libya constituted a “collective expulsion of aliens” within the meaning of’ A4P4 (para 169). The GC rejected the Italian government’s assertion (that A4P4 was not applicable because the applicants were not on Italian territory at the time of their transfer to Libya (para 172) because A4P4 made no reference to the notion of ‘territory’ (para 173). The GC went to some length justifying why this was the correct approach (which of course is also relevant to the ‘Syrian Refugee Crisis’) (paras 174-178), whilst also highlighting that States must establish their own immigration policies but ‘managing migratory flows cannot justify having recourse to practices which are not compatible with the State’s obligations under the Convention’ (para 179). Therefore, the GC found A4P4 applicable (para 182).

The GC reemphasised the importance of expulsion based on individual circumstance (para 183) but also highlighted that:

‘[T]he fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there is a collective expulsion if each person concerned has been given the opportunity to put arguments against his expulsion to the competent authorities on an individual basis.’ (para 184).

Under the circumstances of the specific case (para 185), the GC found a violation of A4P4 (para 186). This serves to demonstrate that even outside the physical territory of the UK, it must still uphold the Convention when it comes to migration.

Article 8 and collective expulsions: the procedural rights dimension

The case of Al-Nashif v Bulgaria (Application no. 50963/99) concerned the expulsion of a stateless Palestinian, Mr Al-Nashif on national security grounds. The applicants, Mr Al-Nashif and his children submitted they were entitled to the protection of Article 8 and that because of Mr Al-Nashif’s statelessness, was unable to develop strong links with any country except Bulgaria where they had established a home and family life (paras 102-103). The applicants argued that the expulsion of family member is a collective interference with their Article 8 rights, making reference to the fact that the family had never lived in Syria, and that deportation created economic and legal obstacles to the creation of a new family home in Jordan and Syria (para 103).  It was also argued that the laws in question were not in accordance with the law because they lacked clarity and foreseeability (para 104), and furthermore Mr Al-Nashif had never engaged in any unlawful or dangerous activity (para105).

The ECtHR accepted that family life existed (para 113) and that this was interfered with by the action of the Bulgarian authorities (para 114). On the issue of clarity and forseeability, the ECtHR reiterated past case law on the idea of laws being accessible and foreseeable to prevent unfettered exercise of powers by indicating the scope of discretion, with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (para 119). This is so even in the context of national security, measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information (para 123). The ECtHR made note that the decision to deport Mr Al-Nashif was taken without disclosing any reasons to the applicants, to their lawyer or to any independent body competent to examine the matter (para 126). The ECtHR also highlighted the legal regime was subject to challenge where the Sofia City Court and the Supreme Administrative Court in some cases refused to accept blank assertions by the executive in unreasoned decisions under the Aliens Act (para 127). The ECtHR concluded that the legal regime did not provide the necessary safeguards against arbitrariness and thus amounted to a violation of Article 8 (para 128).

This case, it is submitted necessarily rules out collective expulsion, as that was ultimately the consequences of the actions of the Bulgarian authorities. Furthermore, in line with A4P4, the decision to remove were based on objective reasonable justifications, which also were difficult to challenge. This leads into another Protocol, that the UK has not yet to date ratified, that being Protocol 7 Article 1(1) (P7A1(1)) which provides that:

An alien lawfully resident in the territory of a State shall not be expelled there from except in pursuance of a decision reached in accordance with law and shall be allowed:

a to submit reasons against his expulsion,

b to have his case reviewed, and

c to be represented for these purposes before the competent authority or a person or persons designated by that authority.

Although P7A1 can be bypassed on public order and national security grounds (P7A1(2)), Al-Nashif demonstrates the procedural requirements for Article 8 compliance. Further, given what Judge Ziemele discussed in his concurring opinion in Lalmahomed v Netherlands it may be that any such EU citizen wide removal system be compatible with Article 6 of the ECHR.

Conclusions:

In the unlikely event that a worst case scenario occurs, this post demonstrates that even if EU law rights and obligations stemming from the European Communities Act 1972 were to be curtailed, the ECHR can still be utilised to protect individuals. It is also important to highlight that, if other EU Member States created similar provisions in retaliation to the UK, the ECHR would protect UK citizens in the EU. Another layer of protection for UK citizens living in EU Member States may stem from EU immigration law concerning non-EU citizens, meaning that the Charter of Fundamental Rights (CFR) would apply and would therefore be covered by Article 7 (respect for private and family life) and Article 19 (prevention of collective expulsion). This post does not even begin to consider the other complex ECHR issues, education, discrimination, etc were such a measure to take force and it would only make removal more difficult.

Barnard & Peers: chapter 13, chapter 27

JHA4: chapter I:6

Photo credit: home.bt.com