"I roar". Lemuel Gulliver famously sprawled, with Lilliputians,1894. Wikicommons/ Charles E.Brock. Some rights reserved.
If we
want to grasp the impact of Brexit on citizens’ and workers’ rights,
we must mentally detach ourselves from the scheme adopted in the
EU-UK negotiation on the Withdrawal Agreement.
This
is not because the scheme is flawed or inefficient. In my capacity as
co-rapporteur for my political group in the Brexit negotiations I
endorsed such a scheme: it has consisted in the struggle to preserve the
European rights (the so-called “acquired rights”) enjoyed by Northern
Irish citizens (more than 1.8 million), by EU citizens in the UK (3.8
million) and by UK nationals within the Union (1.3 million). The total
comes to almost 7 million people who either didn’t stand a chance to
choose or voted Remain in Northern Ireland, and who are threatened by a radical
erosion of their rights.
But
we need to mentally detach ourselves from this if we aim to analyse in depth
the effects of Brexit and its complexity, and better understand why
and how we got here and why citizens’ rights have become, together with
the Northern Irish question, such an incandescent issue in the Brexit
negotiations.
As
concerns Northern Ireland, the reason couldn’t be clearer: the Good Friday
Agreement contains provisions for the birth rights of the ‘people of
Northern Ireland’ to identify themselves as Irish or British, or both, and
accordingly hold British and Irish (that is European) citizenship,
without differential or detrimental treatment. If the whole set of rights
connected to European citizenship is not granted by the UK-EU
Withdrawal Agreement (including the right to be represented in the European
Parliament, but this is my opinion), Northern Ireland will fall back into
a pre-Good Friday Agreement scenario, characterised by hostility and war.
The
loss of rights in the case of EU citizens living in the UK doesn’t involve
a whole nation’s destiny, as in Northern Ireland, but is also
frightening: they risk becoming part of the “hostile environment” planned
for third-country immigrants back in 2012 by the then-Home Secretary
Theresa May.
I say
“why we got there” and not “they”, the UK voters, because
Brexit is a European issue. The Union as a whole is co-responsible
for the monumental distrust towards EU policies and politics voiced by
a majority of people in a member state, and if the EU doesn’t grasp
the nature and the roots of this distrust it is doomed to fail as a
project for unification and solidarity. The Union as a whole is
co-responsible for the monumental distrust towards EU policies and
politics voiced by a majority of people in a member state.
So,
I will divide my speech into two parts. In the first, I will emphasize the
reasons that led up to Brexit, focusing on the question of rights in
general. In the second part, I will analyse the question
of preserving EU rights in a withdrawal scenario.
Brexit downloaded
Let’s
examine the first question: how and why did we get here? It’s the
question posed by the association Compass, together with the
Friedrich Ebert Stiftung (the title of the study by Compass is
“The Causes and Cures of Brexit”, published last September by Neal
Lawson). Most of the time, Brexit is described in a generic
and politically biased way: what I mean – and what the study
means – is the impoverished or inadequate vocabulary used by politicians
– the so-called political classes – and by a great part of the
media.
Words
like nationalism, sovereignism, euro-scepticism, populism, which are used
to explain Brexit, could easily appear in Flaubert’s Dictionnaire
des Idées Reçues: they don’t explain anything, are weaponising, self-referential
and shallow. The films of Ken Loach are much more telling and profound
than most speeches by today’s political leaders or editorials of the
mainstream press in Europe and the United States. Maybe some of you
have seen Loach’s last film– I, Daniel Blake: it could have as
a subtitle: Brexit downloaded. I was also struck by the title of
his upcoming film, scheduled for release in 2019: “Sorry We
Missed You”. I ignore the plot but the title is in every respect pertinent:
here comes a European State that pretended to be the expression of a
people’s discontent but plainly neglected and betrayed them. The vote for
Brexit is not explicable through the prism of Ukip propaganda on migration,
or the Tory Brexiteer propaganda of British unparalleled grandeur.
There has been a Tory or Ukip Brexit, but there has also been a Brexit of
despair and desolation, which has been exploited by Tory Brexiteers or
Ukip but has little or nothing to do with them: I would call it the
“dark backward and abysm” of Brexit, to paraphrase Prospero’s
description of time in The Tempest.
Let
us recall what happened before Brexit: the crushing of Greece by EU
policies, austerity memoranda and intrusive
troikas (the word, “crushing”, is not my own. It has been
used by EU leaders, as testified by the then US Secretary of the Treasury,
Tim Geithner, in his memoirs published in 2015.[1] In February 2010, in the middle of
the Euro Crisis, European leaders actually decided to collectively punish
a nation for having gone bankrupt within a Eurozone whose architecture
never took into consideration the possibility that a member state
could become insolvent. I quote Geithner’s description of the
main leaders’ phraseology.: “ ‘We’re
going to teach the Greeks a lesson. They are really terrible.
They lied to us. They suck and they were profligate and
took advantage of the whole basic thing and we’re going to
crush them.’ [That]
was their basic attitude, all of them”. Even President Jean-Claude
Juncker, who fully supported and implemented the crushing, admitted last
June 2 – with much delay, and without blushing – that Athens had been hurt
by the EU approach, with “the dignity of the Greek people trodden
under foot” when left-wing Prime Minister Alexis Tsipras took office in
2015.
A large
share of UK nationals voted for Brexit out of sheer despair concerning the
massive loss of social rights. Taking back control meant for them
having control over their own lives, as shaped after two world wars by the
architecture of the Welfare State. If we look at the substance, using the
sociological categories of Albert Hirschman, they chose not so much the road of
“exit”, but of “voice”.[2]The welfare system was born during the
second world war in England thanks to William Beveridge, who
submitted a detailed plan for its foundation to Churchill – and who was by
the way deeply convinced of the necessity of a European federation.
But welfare died in England at the hands of Margaret Thatcher and
Tony Blair. Let’s not forget this vanguard role of the UK in both directions:
the creation of welfare and its demolition. So, Brexit
is a contradictory phenomenon: many voters embraced Leave thinking they would
get more, not fewer social rights.
So, Brexit
is a contradictory phenomenon: many voters embraced Leave thinking they would
get more, not fewer social rights. In its Report on the State of the
Nation in 2017, the UK Social Mobility Commission has established that:
“There is a fracture line running deep through
our labour and housing markets and our education system. Those on the
wrong side of this divide are losing out and falling behind”. The
divide is not just an economic or social one, write the authors of
the Report: “It takes the form of a widening geographical divide. The
Social Mobility Index reveals a growing gulf between our
country’s great cities (especially London) and those towns and
counties that are being left behind economically and hollowed out
socially. England is a small country with a large and growing
gap between those places that offer good opportunities for
social progress – what we have called social mobility hotspots –
and those that do not – the coldspots.”
Those
who were lost and fell behind voted massively for Brexit in 2016, and it
is revealing that the 30 regions described in the Report as the worst
for social mobility – from Weymouth to Carlisle – all voted Leave.
Seven of the poorest ten regions in northern Europe are in the United
Kingdom – and all had substantial majorities voting for Brexit in the
referendum. I quote a passage from a highly instructive article by
Caroline Lucas in openDemocracy:
“A
poisonous cocktail of de-industrialisation, the financial crisis and
an ideological assault on public services came together in the Brexit
vote, and the genius of the Eurosceptic right was to blame the EU and
immigration. When the Brexit campaign offered people an opportunity
to “take back control”, it’s no wonder so many jumped at the chance.”
And
she concludes:
“Yet
those driving the government’s agenda are using Brexit to accelerate the
very (neo-liberal) ideology that got us into this mess. They support
policies that would make us more like the United States
where, without the safety net of social security benefits, falling
ill or being made redundant can quickly lead to homelessness”.[3]
Gulliver arising?
My
second point concerns the loss of EU social rights. The link
between the first point and the second is important, because in
comparing the two problem areas we can see the extent of the dark backward
and abysm of Brexit: the use and misuse of peoples’ resentments and
feeling of dispossession and loss, the vicious betrayal of people
like Ken Loach’s Daniel Blake.
Last
but not least, we can meditate on the concept of sovereignism,
another weaponised expression – as I said – frequently used by the present
élites without knowing the reasons for its emergence in the political
debate. Sovereignism is abusively conflated with nationalism or
Euro-hostility, dodging the central question raised by the unclear,
blurred frontiers between supranational, national and
popular sovereignties. When you have EU institutions which impose
policies, economic parameters or labor laws in contradiction with policy
choices promised and voted for in national electoral campaigns, you
inevitably infringe on national and popular sovereignties. It’s
a dilemma never really explained and resolved, with the consequence
that all sovereignties are delegitimised: the national, the
supranational, and the popular ones.
But
let’s examine in detail, now, the likely impact of Brexit on EU-derived
rights, focussing in particular on social and employment rights.
I will first examine the loss of rights in the UK, and then
the specific predicament suffered by EU citizens living in the UK and
British nationals living inside the Union.
What
a majority of right-wing Brexiteers really dislike in the European Union
is the web of regulations and directives that constitute the EU project.
When Theresa May speaks of a “Global Britain which thrives in the
world”, she transmits the false image of a giant power feeling
tied down, like Gulliver, by Lilliputians no larger than his fingers,
and having only one overriding desire: to get rid of the
continental Lilliputian, to be able to stir again and not have arms and
legs “fastened” on the ground, as Swift puts it. Gulliver feels
several slender ligatures across his body, and the EU with its rules and
norms represents the ligature – the name today is red-tape –
to get rid of. The migration issue was useful to get votes. Take back
control was another watchword of the Brexiteers: probably the most
ambiguous and deceitful one. In the final analysis, the real aim of
the Tory Brexit is having a more deregulated and liberalised economic and
social policy: the hidden subtext of the watchword – “take back
control” – is the aspiration for less democratic control, fewer
rules for the labour market, fewer obligations concerning fundamental rights. “Take back
control” – is the aspiration for less democratic control, fewer
rules for the labour market, fewer obligations concerning fundamental rights.
All
this is in reality delusional, and belongs to the magical thinking of the
Tory Brexiteers. EU policy is already significantly deregulated, and its
social fabric has already been ravaged by austerity
policies. Nonetheless, the UK Brexiteers continue to strive for the
status of a giant unchained and want more than the current deregulation,
first and foremost so far as social Europe and the rights of
workers and citizens are concerned.
I
speak basically of rights derived from EU law (including its directives
and regulations), as well as from the case-law of the European Court of
Justice on social relations. Such rights concern not only the
so-called post-Brexit citizens (EU citizens living in the UK and
vice-versa) but also workers and citizens living in all the constituent
countries of the UK, including Scotland, Northern Ireland and Gibraltar
which voted with large majorities to remain (as we have seen, Northern
Irish citizens have a way of getting off the hook: they can either
choose European citizenship and remain bound to the beneficial ligatures
of EU law, or – in case of a no-deal and of the rejection by the
UK government of a special status for its province – hold a
referendum on the reunification with the Republic of Ireland. Both ways
are provided for in the Good Friday Agreement of 1998).
As I said, I’m fully aware that the EU is not a paradise for those who suffer
today from unemployment, precariousness and exclusion (I prefer the word expulsion,
used by Saskia Sassen). Tory Brexiteers want to get rid of the Court of Justice
and its rulings, but it was the EU Court that ruled, in the Viking
Line and Laval cases, that employers’ rights always trump
workers’ rights. So did the Alemo-Parkwood case
with regard to the directive on acquired rights. Jacques Delors
admitted the absence of a social dimension of the EU project in his
famous speech given to the TUC Congress in 1988. He said
that any measure adopted to complete the internal
market should not diminish the level of social protection already achieved
in the member states, and insisted on the necessity to struggle
against the dismantling of the labour market and
to provide better protection for workers’ health
and safety on the job.
He
was in favour of the establishment of a platform of guaranteed social
rights, containing general principles such as every worker’s right to
be covered by a collective agreement and more specific measures
concerning, in particular, the status of temporary work. What came
instead – especially after the financial crisis of 2007-2008 – was
a neoliberal agenda intent on cutting public pensions, applying
downward pressure on wages, privatising public services and removing
the safety net of benefits right across the EU. After many years of
austerity, after Greece’s fiscal waterboarding and the loss of trust in
the Union felt by so many citizens in the EU, it’s time to revalorize
Delors’ objective. To recognise the truth of what he said in 1989,
the year of the fall of communism in the East: “You cannot fall in
love with the single market”. It’s time to revalorize…
what Delors said in 1989, the year of the fall of communism in
the East: “You cannot fall in love with the single market”.
Workers’ rights will be badly hit by
Brexit
At
the same time, it remains clear that workers’ rights will be badly hit by
Brexit. Notwithstanding the intensified neoliberal agenda of the Union,
EU-derived rights in employment exist and persist, and are manifold.
The
case-law of the European Court of Justice is highly contradictory:
it gives priority to employers’ rights in the Viking Line and Laval cases,
but rules in a totally opposite way in other rulings, like Deutsche Post in
2000, which recognises equality and protection against discrimination as a
fundamental right which takes priority over the economic aims of the
Treaty.
Another
example: in November 2017, the Court ruled in favour of a gig
economy worker who never got a paid holiday in 13 years.
Jason Moyer-Lee, General Secretary of the Independent Workers’ Union of
Great Britain, observed that the judgement was “a striking reminder of the
impending disaster for worker rights that is Brexit”. Part-time work,
work on demand and in general the gig-economy are protected by EU law much
more than they will be outside the EU, thanks to specific directives: in
particular the directive on working hours, as well as the directives
on annual leaves, equal pay, maternity rights, parental leave,
anti-discrimination laws, compensation for discrimination
victims, temporary agency worker protection, health and safety. A
report of the TUC in February 2017 has shown that wages will be 38
pounds a week lower, and other forecasts look grimmer.
In
an illuminating advisory report by Professor Michael Ford, drawn up at the
request of the Trade Unions and published in March 2016 with the
title “Workers’ rights from Europe: the Impact of Brexit”,
the erosion of social rights following UK’s exit is described as
unavoidable.[4] Provisions
especially vulnerable to repeal in the name of deregulation or
protecting business, according
to Professor Ford, include among others “legislation on
collective consultation, which hardly fit with the current
Government’s vision of the labour market; working time rules
(a persistent thorn in the side of the UK Government, both
Conservative and Tony Blair’s New Labour); some of the EU-derived health
and safety regulations, the impact of which on employers the last
government already sought to reduce; parts of the Transfer
of Undertakings (Protection of Employment) Regulations (TUPE), from
which the Government has already tried to remove some ‘gold plating’;
as well as the aforementioned legislation protecting agency workers
– which was long resisted by the UK and which is in contrast with
preferences for a ‘flexible’ labour market – and more generally
the protections given to other ‘atypical’ workers, alongside important
elements of discrimination law to which businesses object most
strongly, such as uncapped compensation or high levels of
liability for equal pay.
This
being said, the Withdrawal Agreement as it is now represents without doubt a
safety net, especially as regards the jurisdiction of the Court of
Justice covering EU citizens in the UK, even though it will be time-limited,
hence not guaranteeing life-long protection to EU citizens in the UK
as expressly promised at the beginning of the negotiations.
After
the transition period, on December 31, 2020, the UK will most likely
cap numbers of migrants, as it indicated in a leaked paper revealed in
September 2017. Low-skilled EU workers will be particularly hard hit by
the restriction. And work permits will be allowed for occupations where
there is a shortage of workers: Britain will “come first” in a systematic
way.
That’s why
the European Parliament had asked the EU negotiator, Barnier,
to incorporate in the Withdrawal Agreement as much as possible of
existing rights linked to European citizenship and free movement, as
well as to include fundamental rights and non-regression clauses in the
future trade agreements: thanks to these pressures and despite
manifest shortfalls, significant progress has been made.
Why this
insistence on single rights enjoyed until now by citizens of EU member
states – as regards among many other things the mutual recognition of
qualifications, the rights of residence of family members, as well as
specific rights like the free movement of UK nationals in the EU-27 or a
declaratory system of registration by EU citizens for the new “settled
status” (in opposition to the so-called constitutive registration [5] – the last two battles have been
lost) and on their punctilious incorporation in the text of the
Withdrawal Agreement?
Because
contrary to the assurances given by the Leave campaigners during the
referendum and immediately after, these and other EU rights cannot
be protected adequately and in full, once a member state has exited,
unless the exiting state is bound by an international treaty (that’s
the case, as we have seen, for the Good Friday Agreement). As
a consequence, the rights cannot be automatically called acquired (or vested):
if EU law and the EU Treaty no longer apply, they can be
revoked and cease to be “acquired” life-long as happens in EU law (since
the 16th century, the so-called “Henry VIII clause” allows
the executive power to amend primary legislation by secondary
legislation).
Henry VIII redivivus?
This means
that such rights are lost, if not properly safeguarded: they are not
protected by international law, notwithstanding the repeated claims
of Leave campaigners.
Article
70 of the Vienna Convention on the Law of Treaties provides that
termination of an international treaty “does not affect any right, obligation
or legal situation of the parties created through the
execution of the treaty prior to its termination”, but the parties concerned
are the states, not the individuals. Moreover, other international
treaties containing social rights and co-signed by the UK (for example the
Conventions of the International Labour Organisation – the ILO)
give workers far less legal protection than EU law against any
deregulatory-minded executive.
The
same applies to the European Convention on Human Rights (ECHR), because
it mainly protects civil and political rights rather than
socio-economic rights. It does not cover many important elements of
the working relationship, such as the rights against discriminatory
treatment in all aspects of the work relationship (including pay),
rights to maternity and parental leave, protection of part-time,
fixed-term and agency workers, working-time protections, and almost all
those regulated at present by EU social law.
What
is clear, and the advice drawn by Professor Michael Ford is very
instructive on this point, is that EU law and the EU treaties
(including the Charter of fundamental rights) are distinct from many
other international treaties to the extent to which they give
individuals rights ‘which become part of their legal heritage’.
All
this leads to one indisputable conclusion: post-Brexit citizens will have
only the international treaty codified in the Withdrawal Agreement,
as a legal reference to protect the legal heritage represented by the
rights derived by EU-law.
The
House of Lords reached the same conclusion, and in a very clear way, in
December 2016:
“In
our view EU citizenship rights are indivisible. Taken as a whole they make it
possible for a EU citizen to live, work, study and have a family in another EU
Member State. Remove one, and the operation of others is affected. It is our
strong recommendation, therefore, that the full scope of EU citizenship rights
be fully safeguarded in the withdrawal agreement.” [6]
The
Windrush generation – a test case
My
last point concerns the scandal of the Windrush generation, revealed last
April thanks to a former Home Office employee who decided to
blow the whistle. I mention the scandal here at the end not because
I consider it less important or secondary, but because it
encompasses and clarifies all the problems, pitfalls, and betrayals
of trust described above.
I
will try to summarise the facts, as disclosed essentially by The
Guardian. The Windrush generation are people who arrived in the
UK after the second world war from Caribbean countries at the invitation
of the British government. The first group arrived on the ship Empire
Windrush in June 1948. What happened is that an estimated 50,000
people faced the risk of deportation if they had never
formalised their residency status and did not have the required
documentation to prove it. Some children, often travelling on their
parents’ passports, were never formally naturalised and many moved to the
UK before the countries in which they were born became independent,
so they assumed they were British. In some cases, they did not apply for
passports. The Home Office did not keep a record of people
entering the country and granted leave to remain, which was conferred
on anyone living continuously in the country since before 1
January 1973.
Cases
have accumulated of individuals seeking NHS treatment, passports, jobs or
housing only to find themselves having to prove their right to live
in the country where they have been legally resident for more than 45
years, or risk being deported. Harrowing stories have emerged of
individuals being made homeless, jobless and stateless, after
they failed to produce proof they were never given in the first place. One
man suffered an aneurysm which he believes was brought on by the stress
the situation caused him, only to be presented with a bill for £5000
for his NHS treatment – again because his paperwork didn’t measure up
– while also losing his job and his home. He was left on the street.
As
it turns out, the one source of evidence that might have put a stop to
this torture – the landing cards that recorded arrivals from the
Caribbean until the 1960s – was erased by the Home Office in
2010. The Home Office destroyed thousands of those landing
cards, despite staff warnings that the move would make it
harder to check the records of older Caribbean-born residents
experiencing residency difficulties. The Home Office and British
government were further accused of having known about the negative impacts
that their new migration policies were having on Windrush immigrants
since 2013, and of having done nothing to remedy them. I quoted parts
of the Guardian’s investigations on the subject, and take the
opportunity to recommend also the outstanding articles – in the same
newspaper – by Claude Moraes, President of the Committee on Civil
Liberties, Justice and Home Affairs of the European Parliament.
I
emphasise the importance of the scandal because it sheds light on the driving
force behind the Tory or Ukip Brexiteers. The whistleblower said he
noticed a change in approach to these cases after the announcement of
a policy, set out by Theresa May in 2012-2013, when she was home
secretary, to “create a really hostile environment for illegal
migrants”. Her plan is extremely restrictive, especially as regards provisions
which require employers, NHS staff, private landlords and other
bodies to demand evidence of people’s citizenship or
immigration status.
I
generally avoid quoting Kafka, but his description of the insanities of
paperwork and bureaucratisation is more than appropriate. On his
thirtieth birthday Josef K., the chief cashier of a bank,
is unexpectedly arrested by two unidentified agents from an unspecified
agency for an unspecified crime. The first chapter of The Trial begins
with the words: “Someone must have been telling lies about Josef K., he
knew he had done nothing wrong but, one morning, he was arrested”. That’s
the reason why the scandal has been described as “Weaponising Paperwork”
by William Davies, Co-Director of The Political Economy Research
Centre in London: a scenario in which judiciary and bureaucracy
“collapse into each other”, killing any hope and practice of justice.[7]
Kafka redivivus?
The
first act of the drama begins with the 2014 Immigration Act, which
formalises Theresa May’s aim to create the “hostile environment” and makes
it harder for illegal immigrants to work and live in the
UK. Landlords, employers, banks and NHS services are forced to run
immigration status checks. “The policy – writes Davies – pushed
the mentality of border control into everyday social and economic life”.
Then
comes the second act: the 2016 Immigration Act further extends the former
act, introducing tougher penalties for employers and landlords who
fail to play their part in maintaining the “hostile environment”, and
adding to the list of so called “privileges” that can be taken away from
those who cannot prove their right to live and work in the UK.
A
key feature of the 2014 Act was that it empowered the Home Office to
deport people more quickly and cheaply, avoiding lengthy and repeated
appeals. Three years later, on 14 June 2017, the ‘deport first,
appeal later’ provision was ruled unlawful by the Supreme Court.
The
recent publication of the UK Home Office concerning the prospects of the
settled scheme entitled “EU Settlement Scheme: Statement of Intent” is equally
alarming. It clearly states that the future immigration rules will be adopted
as secondary legislation, hence allowing any future UK Government to make
changes without the need to have a consent from the Parliament. It’s again the
“Henry VIII” clause. A
new data protection bill…
excludes the application of the guarantees provided by the EU General Data
Protection Regulation (GDPR) for immigration purposes.
Furthermore,
a new data protection bill has been recently adopted in UK and it excludes the
application of the guarantees provided by the EU General Data Protection
Regulation (GDPR) for immigration purposes. On top of it, the position of the
Tories regarding the European Convention on Human Rights is well-known.[8]
The third
act is Brexit itself, followed by the moment of truth unveiled by
the Windrush scandal.
We don’t
know the following acts, nor the end of the “hostile environment” story.
A detailed Withdrawal Agreement would certainly represent progress,
protecting millions of EU citizens in the UK and vice-versa, including
Northern Irish citizens whose European rights are confirmed in the Withdrawal
agreement and – in case of a no-deal scenario – safeguarded by the
Good Friday Agreement.
Without
the Withdrawal agreement, EU citizens in the UK and British nationals in
the EU-27 would be thrown down headlong from a legal limbo into a
legal hell. That’s why I said that the Withdrawal Agreement represents a
safety net despite its evident shortcomings. Without the
Withdrawal agreement, EU citizens in the UK and British nationals in the
EU-27 would be thrown down headlong from a legal limbo into a
legal hell.
I
ignore what will happen in Westminster and in the Tory Party, where a sort of
political civil war is going on (the dogfight could be dubbed “Wolf Hall”,
echoing Hilary Mantel’s novels).
More
generally, I would warn against speaking of a “happy ending”. All the deep
social reasons leading to Brexit (despair, distrust, a sense of dispossession,
the loss of sovereignty or control over oneself – or as Foucault
might have put it: of mastery over oneself), and all the political
and media misuses of such discontent (hostile-environment plans,
disinformation, paperwork weaponised, disregard for individual and
collective rights) remain, as one of the biggest challenges for
future generations not only in the UK but in the whole of Europe.
[1] See Stress Test by Timothy F.Geithner
[2] Albert
O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms,
Organizations, and States
[3] See We have answers to Brexit's causes by Caroline Lucas
[4] See TUC Brexit Legal Opinion
[5] “Under
a constitutive system people have to successfully apply in order to obtain a
residence status. In case of rejection, an applicant will have no document
certifying their status; as a result, they will lose all entitlements and
ultimately face deportation. The consequences of not obtaining a ‘settled
status’ document are thus far more serious than not obtaining a permanent
residence card under EU law. In a declaratory system, absence of a
document does not mean that you are not entitled. Even if your application is
rejected you might still be able to stay on a temporary basis, or might be able
to return under free movement provisions” (Stijn Smismans, Professor of
Law, School of Law and Politics, Director of the Centre for European Law and Governance,
Cardiff University). See Brexit and EU27 citizens rights.
[6] See House of Lords decision, December 2016. (paragr.
121)
[7] See Weaponising Paperwork by William Davies.
[8] The
political declaration setting out the framework for the future relationship
between the EU and the United Kingdom, approved on November 22, mentions the
ECHR in very limitative terms, in article 7: “The future relationship should
incorporate the United Kingdom’s continued commitment to respect the
framework of the European Convention on Human Rights (ECHR), while the
Union and its Member States will remain bound by the Charter of Fundamental
Rights of the European Union, which reaffirms the rights as they result in
particular from the ECHR” (my italics).
The
speech, entitled “The
consequences of the Brexit on citizen rights and on the long-term European immigration
vision” was originally given at the Brussels Management School on November
22, 2018.