The Times, 1st December 2016
A detailed policy paper published today the Eurosceptic MP John Redwood makes a controversial argument: that any EU migrants who arrived in Britain after the referendum vote to leave must be obliged to comply with any new immigration system introduced in post-Brexit Britain.
What are the legal implications of this proposal?
At present, all citizens of EU member states, Norway and Iceland have the right to freedom of movement. The term “freedom of movement” is a misnomer: it is actually the right to settle, work or look for work anywhere in the EEA or Switzerland and to access public services. Dependants of a “qualified person” also have the right to settle and access public services.
These rights go further than permitting settlement. EEA nationals (which includes Swiss citizens) must have access to the same public services as those of the host member states and may not be discriminated against relative to citizens of the host country.
Indeed, it is possible for a member state to discriminate against its own citizens but not those of other member states. An example of this is the absence of fees for Scottish universities: Scotland is permitted to charge fees to English, Welsh and Northern Irish students but may not charge nationals of other EEA states.
The UK is bound by EU and international law to give effect to these rights until it leaves the EU. It is also bound by domestic law, as it must apply EU law for as long as it remains a member. After withdrawal, it may or may not be free of its obligations under EU law depending on the terms of exit and whether it remains a member of the EEA.
Assuming that the UK does not remain in the EEA it will (subject to the withdrawal agreement) be permitted to restrict the rights of EEA nationals to settle. What of those EEA nationals who have already settled, particularly those who settled after the referendum, the notification of Article 50 or any other date considered of relevance?
Much reliance has been placed on Article 70b of the Vienna Convention on the Law of Treaties. This provides that withdrawal from a treaty “does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination”. It has been cited as support for the contention that those who exercised free movement rights prior to withdrawal from the EU would have identical rights after the UK’s withdrawal from the EU treaties. Free movement rights entail the right to access public services on the same terms as British citizens, in addition to rights of residence.
It is important to note, first, that “the parties” refers to the states that have entered into the treaties. The International Law Commission has commented that these words expressly do not refer to the “vested interests of individuals”. Professor Sionaidh Douglas-Scott has argued recently that “the faith placed in the capacity of Article 70 Vienna Convention to protect acquired rights may well be misplaced”; although she suggests that customary international may require the UK to respect those rights. So it is uncertain that the UK would be obliged, as a matter of international law, to permit EEA nationals to remain settled in the UK.
An additional consideration is whether, were some EEA nationals to be permitted to exercise free movement rights but not others (for example, those who settled after June 23 this year), this would amount to retrospective legislation. Parliament can legislate retrospectively but to do so is irregular and, to have legal effect, such legislation must state in clear terms that it is intended to apply retrospectively.
In these circumstances, it is unlikely that the restrictions proposed by Mr Redwood, if it were imposed only after the UK withdrew from its EU treaty obligations, would truly be retrospective legislation. The right of an EEA national to settlement and public services is wholly contingent upon EU law. Whether or not the government is successful in overturning the High Court decision in Miller (the Article 50 appeal) in the Supreme Court, there is no dispute that parliament is entitled to withdraw EU rights once the UK is no longer bound by the treaties.