EU citizens living in the UK won’t automatically lose the right to remain in the country at the end of the Brexit process, a lawyer for the British government told the High Court in London today.
That right would only disappear if ministers changed domestic law, barrister James Eadie QC said.
Eadie was addressing the court in response to a legal challenge by several groups of British citizens who argue that lawmakers, and not ministers, should trigger Article 50, the EU treaty provision governing the departure of a member state.
The barrister’s remarks are the fullest exposition to date of the legal status of roughly 3 million non-British EU citizens living in the UK after Brexit.
Since the right to reside in the UK is enshrined in national law, and not dependent on the country’s membership of the bloc, foreign EU nationals will be allowed to remain, Eadie said.
Barrister Manjit Gill, acting on behalf of one group of claimants, said that only parliament should be able to initiate action that would result in residence rights granted by the European treaties automatically “falling away.”
Current EU residents will need to get leave to stay in the country legally, for which as yet there is no established mechanism, Gill said. “They will therefore be committing criminal offenses and be liable to summary removal on the day that we leave the EU.”
Gill said that only lawmakers, not ministers, have the power to expose a class of people to criminal liability and as a result, only parliament can initiate the exit process.
No change to status
After the conclusion of the Article 50 process, the EU treaties will cease to have an effect in the UK, meaning that the rights and obligations to uphold free movement of labor will disappear.
But speaking on Monday, during the second day of hearings in the case, Eadie said that the claimants “misstated and overstated” the consequences of triggering Article 50 on immigration law.
The status of EU nationals will “depend upon a number of factors which are uncertain,” including the course of the exit negotiations and amendments to domestic law, Eadie said.
Citizens of the EU, Norway, Iceland, Liechtenstein and Switzerland have the right to live and work in Britain under the Immigration and European Economic Area Regulations 2006, Eadie said. Those regulations enshrine the principle of free movement in UK law.
“If no change at all is made to domestic legislation, between the giving of notification under Article 50 and our withdrawal, the rights of residents currently conferred by the 2006 regulations would continue to apply after withdrawal,” Eadie said.
“As a matter of law the triggering of the Article 50, or even the withdrawal of the UK from the EU, do not themselves remove immigration rights, which are currently implemented by domestic legislation,” he said.
The UK government has said it will codify the mass of European law in domestic legislation under a single “Great Repeal Bill,” to be published in the spring. The move is intended to give certainty to businesses operating in the UK that rules governing matters such as health and safety and employment will be unchanged for the time being.
But many pieces of legislation will require changes. Immigration law, for instance, will undoubtedly be subject to amendments to comply with the government’s wish to curtail free movement of labor to the UK.
Addressing court on Tuesday, Gill said that the government’s assurances were “misleading” because the regulation only exists to implement European law in the UK.
“Once we cease to be members of the EU, the regulations might as well be writ in water,” Gill said. There is nothing for them to bite on to.”
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