Following last Friday’s agreement with the EU27, the Daily Mail’s headline ran: ‘Rejoice! We’re on our way’. Perhaps. Andrew Cadman in Monday’s TCW points out the horrendous consequences that are likely to flow from taking seriously an avoidance of regulatory divergence between Northern and Southern Ireland on one hand, and Northern Ireland and Great Britain on the other. What about the provisions on citizens’ rights and the Euro-Court? Not quite as bad, but still worrying.
Take EU citizens’ settlement and reunion rights first. To be fair, we have got our way on a few things, even if Nick Clegg said otherwise: or Left-leaning commentators would not be advising their readers on where to put pressure on the EU27 to be more recalcitrant, and Guy Verhofstadt would not be jumping up and down about over-generosity to the UK. For example, primary settlement stops dead on B-Day: you won’t have the right to settle permanently as an EU citizen or a member of their family unless lawfully resident here on that day. Again, we have kept the right to refuse rights to anyone who doesn’t apply within two years (even if there must be a let-out for those who miss the deadline ‘for good reason’), and, it seems, to anyone not working here who doesn’t have independent means of support and comprehensive health cover. The loophole giving residence rights to a non-EU carer for an EU child will go from B-Day. Lastly, and importantly, from B-Day UK rules and not the rather more demanding EU law will govern the right to deport EU citizens who commit crimes here.
So, too, with family reunion rights. EU citizens here won’t be able to bring in a post-B-Day EU spouse unless they have the annual income of £19,000 or thereabouts you currently have to show to bring in a non-EU spouse. And the obligation under EU law to consider sympathetically (i.e. in most cases to grant) applications to bring in dependent members of any EU citizen’s extended family will disappear from B-Day.
The bad news is that these rights are still surprisingly open-ended. The right of settlement of EU citizens in residence on B-Day becomes essentially hereditary. Their children, whenever and wherever born, will be able to join them, officially for their parents’ life, but in practice for ever. And their children, if born here, will very likely be entitled to citizenship. In addition a similar right adheres to all descendants and ancestors of both the EU citizen and his spouse (or civil partner). This could be highly significant. Whether or not an EU citizen, someone married to an EU citizen on B-Day can bring in, no questions asked, a fairly large brood. This includes not only any dependent child but any child or grandchild under 21 from a previous relationship, and in addition any ancestor: free admission, in other words, for potentially quite disconcerting numbers of in-laws.
As regards the enjoyment by EU citizens and their families and hangers-on of the right of residence, a humiliating condition is imposed under Article 36 of Friday’s agreement: ‘The provisions of the citizens’ rights Part will have effect in primary legislation and will prevail over inconsistent or incompatible legislation, unless Parliament expressly repeals this Act in future’. In other words, while it is probably not true that there is to be law in the UK unchangeable without the say-so of the EU (though not all agree even here), what is essentially the European Communities Act 1972 is to be continued for the benefit of a category of privileged foreigners resident here.
And things go further. How under this agreement do we know what EU citizens’ rights are? Don’t be stupid: originating as they do in EU law, they must be interpreted through an EU law lens. Of course. Which body is authoritative here? As if you hadn’t guessed: it’s the Court of Justice of the European Union. Although the CJEU is to have no actual jurisdiction in the UK after B-Day, thus allowing Mrs May to say that technically she has banished the spectre of Euro-imperialism, one might be forgiven some scepticism. UK courts under Article 38 ‘shall . . . have due regard to relevant decisions of the CJEU’ (a sly change from the UK’s proposal allowing, but not requiring, them to have such regard, agreed with the usual pusillanimity). Further, for eight years the present procedure for reference of questions of law to the CJEU is to continue for these purposes.
For all the brouhaha, this agreement probably does not in fact bind the UK in shackles of iron. A determined Brexiteering government in future could always repeal the legislation giving effect to citizens’ rights and re-enact it in different form, thus harnessing legal technicality to get rid of the prohibition on legislating inconsistently with the rights of EU citizens resident here. For that matter, once we are technically clear of the EU after B-Day, there isn’t much to stop us legislating contrary to the withdrawal agreement, presenting the EU with a fait accompli and waiting for it to react by starting a trade war (which it pretty clearly wouldn’t). But the wording is still a humiliation for the UK and a demonstration that, whatever skills our government might possess, effective negotiation is not one of them.