"Brexit: Rights and Citizenship" - Scottish Universities Legal Network on Europe SULNE Workshop - 14 Sept 2017

With vague trepidation as a non lawyer I went along to the day's workshop of the Scottish Universities Legal Network on Europe (SULNE) (https://sulne.ac.uk/at Strathclyde University. The day was Sponsored by the Royal Society of Edinburgh.

I will try to bring together what I ascertained from the day.

I was mainly there to find out if indeed there was a case to protect our rights as EU citizens as I have been campaigning for with the Big EU Passport campaign - see other posts on here !

It turns out I think that indeed it may be that the status of "EU Citizen" does not mean very much. Even though some people had thought it did mean a lot.  For the EU we have been seen as very much as "bargaining chips" and an economic commodity to assist the free movement of labour and goods etc.

If we do cut ourselves off from the EU then there are innumerable problems for those who find themselves on one side or other of the divide. Some countries of the EU allow dual nationalities, others do not. And how will so called "Third Country Nationals" be treated. This is where say for example someone has a spouse who is originally from anywhere outside the EU. Will they be able to retain the rights they may already have to residency or will they need to meet various income requirements. A variety of situations were discussed. I raised my concerns that in among the discussions of EU27 citizens' rights in the UK and UK residents of EU countries problems, the fact that UK passport holder who live in the UK currently are potentially losing Right to live and work in 31 countries is being forgotten.

Would I want to be a lawyer after this day ? ... hmm .... well maybe - if it was in an area of law which was of interest - and certainly for all those involved in European Law they have been very much thrust into a very active and interesting time.

However the day was very interesting - I will try to present some key points from each talk below. And ... the food was good ! Sorry I just had to make sure and eat those Danish pastries - all the food beautifully made by the University of Strathclyde catering service... I wonder if they will give me a recipe for their rice and bean wraps !

And it was my first day to experience using a proper Gender Neutral toilet ! I guess that is topical at a meeting on Rights and Citizenship !

So here goes - I believe there will be papers available online which may explain things better than me as a non-lawyer !

First up -

Prof Jim Murdoch of Glasgow University

The idea that Human Rights permeates UK law - its not just a European thing although I guess it had become so recently. So after Brexit as rights return, how will the various rulings go ...
Is the Supreme Court appearing to beef up human rights in advance of this ... Its time to go back and make common law protect human rights. Lord Reid is concerned that common law sometimes isnt up to it.
This case was mentioned - Rugby vs Viagogo
UK used to take a lot of cases to Strasbourg but we dont seem to now. It may be that the judgements in the UK courts are now predicting more closely what the EU courts would do, and any that do go there tend to be upheld ... (my wording .... trying to understand it all !)
So the UK is now only 0.4% of the cases whereas originally we were many more. Or maybe its just no-one here can afford to take cases there...
But the main countries now taking cases there are Ukraine at 19% and Romania at 41%
We rely on our Domestic Courts to reflect ECHR (should this be ECJ instead?) legislation

Areas UK takes to the court:
Right to private life 30% ??
Liberty and Security 16%
Fair Trial 24%
those sorts of things anyway
Our judges are using Strasbourg language and getting it right and maybe our UK judges going there are playing their game to get cases through ?

This was mentioned - the Bosphorus case - ECtHR vs EU ECJ  - read more here ... http://eulawanalysis.blogspot.co.uk/2016/05/eu-law-and-echr-bosphorus-presumption.html

The following were mentioned but I can't remember what was said - British Bill of Rights and Devolution - Maybe Scotland Act - What will happen if there is an emerging European Convention ...
Withdrawal Bill not in contravention of ECHR

Dr Tobias Lock, University of Edinburgh

(again this is my interpretation of what he said and I am not a law expert !)

EU Fundamental Rights will no longer be enforceable in domestic courts. Labour laws can be amended without parliamentary scrutiny.

Withdrawal Bill (?) repeals EC Act 1972. It cuts the cord. We could have gaps if we don't have the EU Withdrawal Act. as there are laws in EU Directive eg maternity/paternity/working time unless put in a "Savings" clause.  It could have been formulated more simply - didn't need to be a 60 page monster.
EU Charter of Fundamental Rights is expressly excluded - for no obvious reason than IDEOLOGICAL !
There are a few cases where it has kicked in and common law would not have.
Benghar Bush (spelling ?) - couldn't sue a foreign embassy due to State Immunity - some EU court (I am not sure which) said the State Immunity was too broad and should (would?) have contravened human rights.

A UK judge has to dis-apply a UK law if it contravenes EU Charter of Fundamental Rights (Human Rights Act)

So Henry VIII ... (clauses..?) "can cure any deficiencies .... " not sure who that is a quote from ... but doesn't explain.
White paper said no policy change but it's not in the Bill. Powers very broad. Limited to 2 years.

Mike Russell wants clause that limits Scottish Parliament struck out.

Ctrl F (ie Search) Human Rights schedule 8 and paragraph 19. Retained direct EU Regulations can't be struck down eg new data protection rules.
At moment if you had a problem with Data Protection you can challenge in UK court and get judge to get ECJ to review it and it will then strike it ...
David Davis / Watson case ...
All about Data Protection / National security etc
Data retention directive ...
https://www.theguardian.com/world/2015/jun/04/mps-david-davis-and-tom-watson-in-court-challenge-over-surveillance-act
https://terrorismlegislationreviewer.independent.gov.uk/cjeu-judgment-in-watson/

Not sure why retained EU regulation would get that status (I don't know what this means...)
Dominic Grieve is quite human rights friendly.

Prof Alan Miller (member of Standing Council on Europe set up by Scottish Government)

update from Standing Council on Europe :
"The times we are in demand ambition!"
Have taken one step back and need to take two steps forward !
as Rights and Social Protection are being removed by Brexit and people will suffer.

Standing council is :
  • academics
  • diplomats
  • business
  • think tanks
  • civic people
  • and himself (and STUC Graham Smith?)
First Minister asked Standing Council to determine impact on Scotland - here is their analysis and what should be done about it....

3 proposed guiding principles:
  • Non Regression - maintain current protections within powers
  • No-one should be left behind
  • Scotland should be able to continue on its course of protecting rights
4 Round Tables
- some in Brussels - some in Glasgow

11 papers from SULNE
incl. looking at developments happening in Brussels so we could keep up.
In terms of civil society it had to engage more - maybe a declaration of rights for public so it doesn't stay at too high a level.

Pillar of Scotland Act (the closest we have to a Constitution) - comply with EU law + HR compliance
Incorporate UN treaties etc. ?

These principles now embedded in new programme for Scottish Government.
No regression.
Scotland continuing to take lead.
In First Minister speech on Monday started to embed the right.
Scotland could continue to lead through example in social, environmental rights etc.
He is Chairing new Social Advisory group.
See what emerges over weeks, months from that ...

We are going to need:
  • Constitutional Law experts
  • International Human Rights Law expertise
etc

Scotland will need a complete Human Rights agenda.

Trade and Human Rights
Competitiveness vs Rights
Regulations and Standards under threat.

People with direct experience of poverty and discrimination in civil society are very important. (need to be involved in discussions and listened to ...)
(Civil Society definition : includes the family and the private sphere, referred to as the "third sector" of society, distinct from government and business)

My question .... What is EU Charter of Fundamental Rights (Human Rights Act?) vs ECHR ??

Kavita Chetty, Scottish Human Rights Commission

(again this is my interpretation as a non lawyer of what she said !)

1  First principle in Scotland - No Regression

Equality and Human Rights Law

2 Continued opposition to repeal of Human Rights Act
3 Scotland needs to be a leader

And look at Global Best Practise - Need to be Ambitious

Rights protection needs parliamentary protection.

Human Rights Act cant be changed but we have a myriad of regulations emanating from EU.

Personal data / Right to asylum ...

Scottish Government trying to stop attempts at repeal of Human Rights Act.

UN Treaties
UK is signatory to Right of Disabled, Right to Work etc
7 UN Treaties
Binding in International Law ... but not directly applicable in UK (I think it was in the EU) so this is a chance to make sure those are incorporated to UK.
(Right to housing, food, have everyday things ...)

I'll put here Universal Declaration of Human Rights as this is interesting link:
http://www.claiminghumanrights.org/universal_declaration.html

Article 51

Need a Constitution.

Maybe we have too rosy a view of European Charter. Things like asylum seekers being sent back to Libya...
European Arrest warrants.

Lobbying - what will happen - eg Murdoch can lobby to get regulations changed - "actors" who gravitate around government...

Go beyond civil and political rights ➜ incorporate what we want from EU then take the UK rights we want to incorporate - what can we learn from other countries.
____________

If lawyers cant even work out the rights how can the family on the street know their rights ?

Bosphorus case
search here for Bosphorus : http://pure.qub.ac.uk/portal/files/16340171/Article_for_EHRLR_13.1.15.pdf
- right to conscientious objection.... not sure if that is another case ...

Any change to NI Act implies Belfast Agreement non longer applies.
If could bind the Regional parliaments to EU law this would allow more Devolved development.

(EU Withdrawal ?) Bill already creates 2 types of domestic law.
eg if Scottish Govt wanted a stronger Right to Strike, or something ... that could be done...

Neuburger (?) concerned about this ambiguity (Jim Murdoch)

Bernard Ryan from University of Leicester ... 2000 Human Rights Act cut-off. What period is Jim Murdoch talking about ...  Maybe we are not getting it right for HR ...

Without support from a 3rd party average citizen cant afford to bring a case to ECJ / ECHR ...will it be more limited in future due to expense.

That was the end of the first morning Session on "Rights"

Second morning session - Rights (II)

Prof Nicole Busby - University of Strathclyde / Muriel Robison - University of Glasgow

A Bill ➜ An Act

EU Withdrawal Law
Has concerns at moment - may be shown to be OK - just a worry at moment.

EU Equality law has been a driving force in employment context.

EU has dragged UK in its wake.

UK's Equality Act 2010. Cover most of the areas of the EU one but there are some gaps.

Works well-ish at moment but maybe there will be a drift after Brexit. Equality Rights might drift by neglect.

Can Scotland take a distinct approach ?
Any opportunities after Brexit ?

EU Equality covers :
  • Gender
  • Race
  • Sexual Orientation
  • Disability 
  • Religion  etc.
There are directives on fixed term, part time and temporary work.
Jurisprudence of Court of Justice of the EU. C.J.EU

Threats to UK Equality Law
  1.  Lack of written constitutional guarantee of equality in the UK -   EU equality law fills the gap unlike many fellow member states
  2. Current gaps in UK provision - equality laws are vulnerable to repeal, amendment, neglect
  3. Loss of the benefits of EU Law's future development : - Charter of Fundamental Rights  - CJEU jurisprudence
Currently 9 features are protected but in future EU might protect eg Class, Caste, Carer Status might be included and we wont keep up !

UK does often look at judgements from International or Canada or South Africa etc. So it may keep an eye on EU.

Re: Scotland
Equality is reserved, Human Rights is/are Devolved !

There is a Scottish Human Rights Commission.

"Equal Opportunities" reserved under the Scotland Act 1998 (with exceptions)

Could Scotland use the 62% Renain vote as leverage for further devolved powers ?

In the transfer of rights, and the fact some might want to see them not transferred ... Neglect is as likely as strategic dismantling.

Social policy areas eg equality and employment are likely to be contentious in negotiations.

Dr Rebecca Zahn - University of Strathclyde

Workers Rights.
Even the Trade Unions said vote Remain.
Workers voted Leave .. (well some did ...)

People don't know how much EU has affected them as its a bit patchy.

Substantial Health and Safety Law derives from EU and Employment Rights and Social Rights. These limit UK Govt Legislative capability in those areas.

There are some instances where UK Law has gone beyond EU Law.

Also some EU Laws don't work well with UK situation.
but overall EU Legislation has been very positive for UK Labour Law.

If we join EEA then the future EU laws would apply. Case Law of EFTA court irrelevant as it follows EU.

Non membership options mean we can't make change and individuals have (not sure of last word here)

We may have a more de-regulatory approach to labour - more of a neo-liberal approach.
?working time legislation for agency workers?

Collective Redundancy - there is legislation protecting agency workers in Employment law
Quite a few are affected by Henry VIII Laws (Henry VIII Clauses 7 - 9)  (http://www.parliament.uk/site-information/glossary/henry-viii-clauses/)
written too widely at the moment.

Past use of Henry VIII Law to change employment Right Act 2002.
(also Blair Govt used them...)

Scottish ? Employment incl. Health and Safety are Reserved areas Scottish Government might be able to get an influence eg Health sector - there are debates over working time directive - who is responsible.
Public procurement - is devolved.

Could be a case to devolve Health and Safety in agriculture, fishing, oil and gas etc.

Discussion led by Prof Dagmar Schiek - Queen's University Belfast

UK Lawyers have been good at campaigning in EU for equality. EU will miss that.

Withdrawal Bill freezes things at a state of imperfection yet it was moving away from some accepted cases and that have been used up til now.

They implemented gender but not race etc.

Question from Bernard (Leicester) ... If start an equality appeal before Brexit and while still fully under EU law, but judgement occurs after, will there be a principle of "most favourable legislation" applying ?

Usually there is a principle to take the most favourable if two apply.

Blair Government used Henry VIII laws to water down employment rights fairly regularly. (Rebecca Zahn)

Afternoon Session - Citizenship

Nina Miller Westoby - University of Glasgow - EU Citizenship
(Nina wrote the EU Citizenship paper for SULNE)

Again this is all in my own words - as a non lawyer trying to write down what I could !

Where we are re: Free Movement:
The term "Third Country National" = TCN came up.

Free movement rights.
Right of entry and residence flowing from EU law.

Innate - supra-national

Rights of Residence if staying over 3 months are dependent on:
  • if economically active / self employed
  • family rights - spouses (TCN?), dependents (even if TCN) and parents (TCN?)
  • equal treatment
Permanent Residence after 5 years
Limiting free movement rights - removed

After 5 years - "protection from removal" rights - and after 10 years even more protection from removal.
Job seekers have protection as well.

Since 2000 Charter of Human Rights, the Rights in this framework are building idea of being Fundamental Rights.

Same sex marriage issues eg can a TCN spouse re-enter a country. (Coman Case) -
http://eulawanalysis.blogspot.co.uk/2017/03/awaiting-ecj-judgment-in-coman-towards.html
this case seemed interesting too when I was looking- http://eprints.whiterose.ac.uk/101377/7/Strumia%2C%20Divorce%20Immediately%20or%20Leave%2C%20CMLR%20final.pdf

This is interesting re: Free Movement - Lisbon Treaty etc :
http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_2.1.3.html
(In fact just read that blog and stop reading this !!)

"Worker" must be for remuneration, genuine and self employment must be stable and continuing.

"Job seeker" must be genuine and with a chance of employment.

EU Citizens as migrants - we (EU Citizens?) didn't consider ourselves as migrants. A privileged group of migrants.
Having to deal with immigration authorities etc was not what EU Citizens (in UK) expected as legitimate EU Citizens.

We have a "Permission Based" system - No predictability
  • Byzantine (ie excessively complicated and with lots of admin) and Frequently Changing
  • expensive and with a high refusal rate
  • personal scope prescriptive - smaller group come under "family members"
  • Appeal Rights limited
There appear to be two overlapping systems - one based on "Rights, one based on "Permissions" - not sure if this means its the EU one vs the UK one ....

There may be a transition period before new immigration rules applied. And there may also be EU citizens who "can't, don't or wont" apply - what will happen to them ?

Free movement in UK Domestic context.
Frictions and overlap
Vulnerable groups
Hostile environment
Devolution - different needs and immigration in a positive light (House of Lords Report on Brexit and Devolution - July 2017)

Prof Eleanor Spaventa - University of Durham
Secondary EU citizenship rights Family members & Political Rights

2ndry Right
  • Welfare rights / equal treatment rights for economically active.
  • Family re-unification rights
  • Political rights
Registration requirement / work permit (by sector)
Language requirement / minimum income requirement

NHS charges / surcharge ? / health and welfare

Making UK a non-palatable destination. (this was not a recommendation ...but a worry/prediction I think)

Leaked document - is it to persuade EU citizens to go away now ?
- equal treatment?

EU citizens in UK pre-Brexit will be protected by ECJ ... in rights - how to define who are the Right holders though ? Minimum income ? who will be covered ? part time ?
What about people who left work ?
What about women taking time out for caring ?
Women could be left behind - as have been part time, pregnancy.
Children get rights from their parents

UK Position

appears to be:
EU Citizens who moved by March 2016 will get full equal treatment (will there be a grace period?)

If moved after March 2016 you will get transition  ➜ path to ILR (Indefinite Leave to Remain?)

2 years grace period after Brexit if we are staying in Single Market.

Family life - EU wants to protect EU Citizens in UK ..repatriation of the person they fall in love with...not sure what this meant - but the problem of eg a UK citizen falls in love abroad in eg France with a person from eg Brazil (a third country national) then if the UK person marries them in France but then returns to Britain I think there are problems with that repatriation at the moment - will that be even more of a problem post-Brexit ?!

(This is relevant to the next point regarding the £18,600 figure for income and your rights re having a foreign spouse with you etc in UK : http://www.lbc.co.uk/radio/presenters/ian-collins/ian-dunt-tells-brexiteer-daniel-hannan-some-facts/?utm_source=t.co&utm_medium=referral)

After Brexit for EU Citizens who want to have a family member to join them, it will be £18,600 minimum income for a family member to join and in addition £3000 to bring a 1st child, £2,500 for second child. Also there will be language requirements.
The "Singh Route" will no longer apply. ... (To explain the "Singh Route": http://otssolicitors.co.uk/news/ireland%E2%80%99s-delay-in-issuing-visas-under-the-eea-surinder-singh-route)
(My annotation : An interesting message board on the Singh Ruling - I think now a spouse does not get an Irish passport automatically as this has stopped - I met an Irish family in Glasgow that I know - the Mum and kids have passports but the husband hasn't managed to get one as rules have changed). Here is an earlier discussion on the Singh Route ... https://www.immigrationboards.com/eea-route-applications/eea2-surinder-singh-3-month-success-story-t169701.html)

If a pensioner in France you could be stuck between France and UK. (I am not sure what was meant by this)

Low income / vulnerable people could be badly affected.

We have no Systems - no Identity Cards so everything is tricky.

If a citizen from EU but outside the UK doesn't Register within the two year transition they could lose all accumulated Rights of having lived in UK.

Prof. Bernard Ryan, University of Leicester - Brexit and Nationality Law

Concepts of Nationality Field:

  • Different people view Nationality differently
  • Avoidance of Statelessness
EU is re-discovering Nationality. Large claims were made for EU Citizenship.
Post National membership - equal treatment within.
Have found its not totally secure - especially if a State goes its own way. Rights are reversible. EU27 now conscious of shock to Citizenship with Brexit.

So, people protecting position by going to Nationality Law eg getting Irish passport - by place of Birth or Descent.  Irish are very generous as is Germany.

EU Law leaves it up to member states who they grant membership to and hence EU Citizenship (Roffmann case) Withdrawal of citizenship if leads to loss of nationality ?

Implication is we could return to 1962 - 72 hierarchy. So "British Citizen" comes back ...
could easily lead to new reflections on who gets "British Citizen" - could easily lead to negative outcome but doesn't need to.

EU27 restrictions on dual nationality:
  • UK accepts multiple nationality
  • 11 states require renunciation - Austria, Bulgaria, Croatia, Estonia, Germany, Latvia, Lithuania, Netherlands, Poland, Slovenia, Spain (from EU Democracy Observatory website) (Please check though as he wasn't sure of the countries)
  • there are also issues around resumption of nationality
Nationality Law - very complicated. Fine if we are all in EU, not so otherwise.

Children born here but parents left pre-Brexit but child wants to return later - will they get UK nationality ?
Also children of UK born in EU27 but want to get British ?
Capparelli - EU Citizens are not registered under immigration law.

Discussion led by Rosie Sorrell, Solicitor, Ethnic Minorities Law Centre

Immediate problems for those ....

Phones lines jammed for days after Brexit vote....
Something about the Scottish Govt on 27 October ....

She answered about why our own EU Citizenship / passport rights were never mentioned/ She thought maybe it was seen as not a great campaign point to get wider votes by supporting "middle class" mobile workers etc
Eleanor then added she thought it was "UK arrogance" thinking "of course they will want us"! ... "we can get drunk in Spain etc...." they will still want us !

Will there be ID cards ?  Leaked document says EU27? Citizens in UK will need a passport or documentation etc.... 3rd Country National married to UK will need the same etc.

To issue 100,000 residence documents were issued in 2016 ... how much more work to issue 3,000,000 - someone worked out it would take 30 years !

Migration Advisory Committee .gov.uk

Session 2 : Citizenship II

Prof Dagmar Shieke, Queen's University, Belfast 
Feasibility of Alternatives and General Remarks

Overall Potential :

Citizenship Rights strengthen internal market right
                                 ⇓
EU Citz? providing a civic home for EMU + the market
                                 ⇓
Participation in EU Policy
                                 ⇓
A step towards Global Citizenship

Rights, Duties, Solidarity

Kochenov
Bellamy:
Ahrendi: Citizenship as rights to have rights
Kostakopoulou: liberal reciprocity and constructive pluralism (find out more on Google !! I had never heard these terms before !!)

Why has EU Citizenship become a problem for the UK?

Read: Elspeth Gould: "Monstrous Citizenship"

"Brexit : 15 months on" - Von Papp (Keele) - benefit tourism

Coutts (Dublin) - "elite" concept - its only used by elites

Fichera (Helsinki) - Does Brexit suggest that EU Citizenship has never really existed as a "fundamental status of nationals of the member state ....."

In Great Repeal Bill, EU citz will be protected in perpetuity but UK citz will not be protected.. (not sure what that means) except maybe the EU27 who are here are protected...but UK wont be

Dual Citizenship strategy ?
Maybe we can pay for citizenship - Guy Verhofstadt

Tony Blair Institute - "Taking Control"
suggests ....
Limit EU Citizens Rights in UK
"Blair" Revise Cameron clause - Use emergency clasue and Remain in Internal Market.
Specify desirable categories for immigration, give them rights that are similar to EU rights ....
and this will be reciprocated .....

Overall not very positive though ........

Danger:
  • Restricted to economically active except "posted" workers
  • Implied duty to market oneself
  • etc - I didnt get the rest written down !
All these debates have made the EU think about Citizenship. 
Implied duty of marketing oneself if want to stay mobile.
EU may group together and enhance quality of their Citizenship.

Blair (using paper written by Herbert) said "sector by sector" approach - better approach than Cameron's. And seriously there are few sectors that you would restrict when you look at the evidence. So effectively you keep Freedom of Movement.

Rest of Europe has Rights Based System and require ID cards.

Guy asked about ... On return from Hong Kong where he ran a company and coming to Belgium to run a company, he had to fill out a card to explain why a Belgian couldn't do the job.
And he needed to be there a year before he got benefits.
If want to stay in the EU, we will need to make changes here.

Ireland had quite a lot of immigration from the EU.
Maybe EU should have financial assistance ...(not sure what that meant)

Blair idea is to get people to accept internal market and free movement if they say they can stop Free movement for certain sectors.

UK system more vulnerable due to free at point of use ...but also we dont have systems in place

Beveridge system - Sweden / Denmark also follow Beveridge but they collect EU migrants and Bill them ! 
When British pensioners arrived at the Spanish hospitals this caused all sorts of problems for Spain - they had to expand hospitals, take on more staff etc.

And that was the end of the meeting.

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