UK Constitutional Law Association

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Virginia Mantouvalou: EU Citizens as Bargaining Chips

Virginia_MantouvalouA few days after the referendum on EU membership of the European Union, Theresa May stated that she would not guarantee the rights of EU citizens in the UK. Her statements were supported by Philip Hammond, then the Foreign Secretary, who said that it would be ‘unwise’ or ‘absurd’ to guarantee rights of EU citizens to stay in the UK before negotiating with other Member States, and were also repeated in Parliament by James Brokenshire, the junior Home Office Minister. Mr Brokenshire was prepared to be slightly more reassuring, but only went so far as to say that there will be ‘no immediate change’ in the legal status of EU citizens in the UK. Many condemned this position as morally repulsive and politically problematic. In this piece I argue that the stance of the UK Government on the status of EU citizens in the UK may violate the European Convention on Human Rights (ECHR). European human rights law does not permit the treatment of people as bargaining chips.

It should be made clear from the outset that even though the Leave campaign (whether intentionally or not) confused the EU with the ECHR in its official leaflets, the referendum had nothing to do with UK membership to the Council of Europe, which is a distinct supranational organization from the EU. If the UK leaves the EU, it will still be bound by European human rights law as embodied in the ECHR, incorporated in English law through the Human Rights Act. The Convention was not at stake in the referendum.

There are at present 2.9 million EU citizens from other EU Member States in the UK, with 2.15 million in work. These EU citizens arrived in the country exercising their citizenship rights under EU law that guarantees free movement. The UK Government has been a signatory of these free movement rights, and it is puzzling if a mere 52% of those who voted can repeal these rights, which have constitutional aspects. In any case, EU citizens did not enter the country unlawfully nor did they overstay any visa, for the simple reason that they did not need a visa to enter or work in the UK. They arrived lawfully, with a legitimate expectation that they could be employed, form friendships and other social relations, build families and plan their lives in the country, without the fear created by the present political climate.

In EU law, deportation of EU citizens is only permitted in extreme situations, when someone poses a grave threat to national security, for instance. But Theresa May and other Tory MPs do not refer to these existing EU law exceptions. To make sense of the above statements that the legal status of EU citizens who are already in the country cannot be guaranteed, we have to presume that the plan is to deport people who do not pose a threat to national security. Both these statements and (even more so) any decision to deport EU citizens if the Government is not satisfied with the outcome of the negotiations with the 27 Member States of the EU, may breach European human rights law.

First, the great degree of uncertainty and anxiety created by these statements that upsets legitimate expectations and leads to a sudden inability to plan one’s life for months and years to come, with possible devastating implications for personal, professional and social relations, and second, the significant implications of any future deportations may violate the right to private and family life of EU citizens under article 8 of the ECHR.

On the first point, the protection of private life in the ECHR is not limited to activities performed in one’s own home. That the right to private life may protect a right to a specific way of life, for instance, is an established principle in the case law, which emerged in a line of cases on Roma rights. In Chapman v UK (2001) the majority of the Court ruled that the eviction of the applicants from their land interfered with article 8, but on balance did not violate it. It was influenced in this by the fact that the applicants initially established their homes unlawfully: ‘If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move’, explained the majority (Chapman, para 102). The principle of Chapman can clearly apply to EU citizens who have developed a way of life, and established their homes and lives lawfully in the UK. The effects of uncertainty on professional relations can also bring EU citizens’ claims in the scope of article 8. In the landmark Niemietz v Germany (1992) the Court explained that private life is a broad concept: ‘[r]espect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings’, and in Sidabras and Dziautas (2004) it ruled that work is a central element of a person’s private life and can fall within the ambit of article 8 (see also IB v Greece, 2013). Examples where the Court may be particularly willing to protect individuals whose private life is affected by the present situations may include, for instance, those involving parents who cannot plan their family lives and education of their children. That the negotiations on Brexit may last at least two years may also have a weighty role to play in any test of proportionality employed by the Court. It is very unfortunate that the Government has been so unwilling to provide firm reassurance to people that their legal status in the UK is secure.

On the second point, there is of course direct authority on the capacity to deport and article 8 of the ECHR. If removal of a person results in his or her separation from close family members, it may lead to a breach of article 8 (Al-Nashif v Bulgaria, 2002). Particularly when there are children involved, the best interests of the child have to be taken into account (ZH (Tanzania) v Secretary of State for the Home Department, UKSC 2011). Moreover, removal from a country may also lead to an interference with article 8 if those removed ‘had developed, uninterruptedly since birth the network of personal, social, and economic relations that make up the private life of every human being’ (Slivenko v Latvia, 2003, para 96). The fact that all EU citizens in the UK settled lawfully in the country makes their case even stronger.

Theresa May is no friend to the ECHR. Only a few months before the referendum, she declared that she wanted the UK to withdraw from it. Some of Mrs May’s reactions to the Convention appear to be attributable to her misunderstandings of the UK’s human rights obligations. Her claim that someone avoided deportation because he had a pet cat, for instance, has been shown to be unsubstantiated. Courts have never stopped a deportation only because someone is attached to his or her pet. In any case, Theresa May guaranteed a few days ago that she would not seek to take the country out of the Convention. It is to be hoped that both Mrs May and the rest of the UK Government will make their best efforts to comply with the country’s remaining international and European legal obligations.

 Virginia Mantouvalou is the Reader in Human Rights and Labour Law and Co-Director of the Institute for Human Rights, University College London.

(Suggested citation: V. Mantouvalou, ‘EU Citizens as Bargaining Chips’ U.K. Const. L. Blog (14th July 2016) (available at: available at https://ukconstitutionallaw.org/)).

12 comments on “Virginia Mantouvalou: EU Citizens as Bargaining Chips

  1. Geofrey Lane
    July 14, 2016

    I’m wondering how the Premiere league are going to cope when they want foreign players

  2. Katie Jackson
    July 14, 2016

    And what about the British citizens who live and have invested in other EU countries. I have spent 15 years investing in a business and now I am left wondering whether I should buy new machinery, take on new employees etc. if I don’t my business will suffer. If I do and the rights I have are removed or changed it could devastate ,y investment. Even if the acquired rights are kept which is a big if then my business relies heavily on the British immigrants who may no longer be free to move here. And I guess I will just be a statistic. I certainly won’t get subsidy or help from the government here or at home or the EU. I am struggling to believe that something which will affect me so much has been decided by unqualified ordinary people. When one of the bankers I think it was lees On my way! or something made a disastrous gamble that affected his employer he went to prison for his efforts. David Cameron has made a much bigger gamble and lost but he is leaving still happy and still with millions intact. Infuriating…

  3. Tom Austin
    July 15, 2016

    Thank you for expanding upon the points you made at the informative and heartening meeting on Wednesday evening.
    In that same hall a short time before the referendum the question arose of the future status of non-British EU citizens resident here.
    One answer came from Hugo Dixon – he of InFacts. To the effect that such deportations would require ‘retrospective legislation’, a thing that is anathema to English Law.
    Alas, the events of the past couple of weeks have shown how fragile the rule of law is when dealing with this potential Brexit situation. Especially when coupled with the remark made that night that our acting contrary to our constitution may be regarded as no more than ‘rudeness’, and repercussion-free.
    P.S.
    As this situation is fast becoming more petty-politics than law I have started a petition to throw the dread that many around the country feel back in the laps of those charged with working through Brexit while remaining largely above the fray:Parliament. An offer to display our contempt for the contempt we are being shown by our Political masters…
    https://www.change.org/p/jeremy-corbyn-mp-brexit-up-with-this-i-shall-not-put

  4. Arthur
    July 15, 2016

    What about British citizens in Spain being used as a bargaining chip for shared sovereignty over Gibraltar? Are you absolutely sure that you want the UK govt to concede its position before negotiations have even begun, especially given that it can hardly rely on intra-EU goodwill any more? If you do, I must respectfully (but strongly) disagree!

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  7. George Revel
    July 20, 2016

    Arthur –
    You have missed the entire point of Dr Mantoulavou’s article here: ECHR rights apply equally to non-British EU citizens in the United Kingdom as they do to non-Spanish EU citizens in Spain. The legal argument doesn’t change as both the UK and Spain are signatories to ECHR. The current government position vis-à-vis rights of those EU migrants legally settled in Britain is either legally abominable or political misdirection at the cost of Art 8 rights.

  8. Martin Cahn
    July 20, 2016

    You can of course do something by lobbying. I have set up a petition to Parliament. I am married to an EU citizen and my family life could be broken asunder if she is forced to leave back to Poland. And she had no say in the referendum result. I have just done a little rough calculation of the likely support among the referendum electorate for Remain and Leave based on differential turnout and voting patterns by age, and I came to Remain 50.3% and Leave 49.7% – effectively 50:50. On top of that neither EU citizens nor 16-17 year olds had the vote and they are the people most directly affected. Do sign the following petitions to bring them in:
    https://petition.parliament.uk/petitions/146255 and https://petition.parliament.uk/petitions/159488

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