Brexit: A Dumbing Down of Rights or Expectations?

Posted onMarch 15, 2017

By Dr Harry Hagopian, Consultant Public International Lawyer to OTS Solicitors

Parallelism? Sequentialism? Do they mean much to the reader in terms of the forthcoming Brexit negotiations?

These are in fact two of the Brexit-related neologisms that do not necessarily roll off the tongue easily! Yet they are gradually creeping into our political lexicon as the UK and the EU argue - philosophically at times and haltingly at others - over the issues that need to be discussed in Brussels as both parties go their separate ways. Should all those issues be discussed in parallel for instance, or should they be dealt with sequentially?

Brexit: the buzz word of the moment! Indeed, when watching the news on any TV channel these days or - in my case - waking up to the dulcet tones of the BBC Radio 4 Today presenters, I can safely wager that two key news items almost invariably capture the airwaves - and our short attention spans too. One is the latest matinal tweets by President Donald J Trump, whilst the other focuses on the latest conjecture or hearsay impacting Brexit.

But after a while, Brexit also becomes a tad boring not least because newscasters and commentators are groping in the dark. Despite the Prime Minister’s pronouncements and a White Paper, there still are in my opinion no concrete details about our docket once the Prime Minister invokes Article 50 and kick-starts negotiations with the 27 other EU member-states. I often remind colleagues that we have indeed voted to pull out of the EU - and that is putatively irrevocable despite the skirmishes or blusters - but that we have not voted on the process that would lead us out of the Union. Some retort that I am merely carping and that the negotiations themselves are de facto the mechanical process. I beg to differ with this ‘populist’ opinion. When we agreed to leave the EU, most of us hardly knew anything about ‘free trade’ or ‘customs union’ or ‘WTO tariffs’! Do many of us for instance realise how long it took to put together the progressive EU-Canada trade deal (CETA)? Many of us voted more with our hearts in the referendum on 23 June 2016 - whether for or against - and we did not have real opportunities to engage our minds fully. How could we: the discussions were superficial, trite, emotive and had little evidence-based substance to them. But we are now in a different timeframe: it is about our future and that of the younger generations in 2019, 2020, and much later - screws, bolts … and also rights.

One immediate issue affecting Brexit and our egress from the EU relates to the 3 million EU nationals (and correspondingly the 1.2 million UK citizens across the EU) who have been living or working in the UK. Since I am writing this blog for a leading Immigration law firm in the UK, I think I should add a few words about those men and women who are unsure of their future rights. After all, the lawyers working every day at OTS Solicitors and in other firms are interpreting and defending those rights - be that in terms of residency permits or otherwise.

I have myself noticed - and also written - about the trepidation that has slowly gripped many EU nationals in the UK who do not know what will happen to them once the negotiations with the EU chief diplomat Michel Barnier start in Brussels. Will they be given leave to stay in the UK or will they be asked to return ‘home? Will they enjoy the rights they possess today according to the Lisbon Treaty (minus the opt-outs) or will it be another ballgame altogether? This is even truer for Eastern Europeans who are perhaps more skittish about their future because of their own memories of communism.

So as most Immigration firms would tell you, many nationals are today rushing to apply for permanent residence cards in the UK. However, those applications are not as straightforward as one would imagine, not least because the requirements are quite stringent and include inter alia not only a stay of 5 years in the UK but also predated health insurance cover for self-sufficient residents or students. Yet, more critical than that for me is the jurisprudential argument that casts some doubt over those permits. Forgive me for sounding a tad doubtful, but what if the negotiations collapse in 2019 (the hypothetical two-year cut-off date) and the UK decides to walk out: would those cards still apply, or could they conceivably - if only in theory - be superseded by legislation that repeals their validity?

Assuming the negotiations lead to an agreement, it is almost ironic that EU and EEA nationals who have enjoyed some rights that are broader and more harmonised on their continent than other nationals across the world could suddenly become treated like un-European (not non-European!) aliens entering the UK. One way of symptomatizing this in a raw manner is by imagining passengers flying into the UK. Like everyone else, they will then have to queue in those long lines. Readers should not shrug off this fact as irrelevant because it requires a mental leap for most peoples from Europe to absorb that their continent - they - no longer enjoy special access after well over four decades of free movement. What a humbling - sober - experience for them and of course reciprocally for UK nationals travelling to Europe too. Do such concerns not somehow remind us of the unease felt by travellers from other parts of the world - say the Middle East whose culture I understand a fair bit - who often approach Immigration officers with diffidence compared with EU citizens who assume it is their right to be admitted into the UK?

But how fragile are those Immigration laws anyway? After all, did the EU Parliament chief Brexit negotiator Guy Verhofstadt not state that he would like to see British citizens retain their EU rights on an "individual" basis following Brexit? And did his comments not draw ire from prominent leavers who argued that he is trying to undermine the "nation state"? Where is the reality amidst all this negotiating foreplay?

One thing that we often forget is that whilst we speak of Immigration “laws”, we in fact often mean Immigration “policies” that are political in nature and can be amended quite easily. Legal scholars and practitioners would recount how often and how unpredictably Immigration regulations and procedures change for non-EU migrants. Following Brexit, the same could well apply for EU nationals from the 27 member-states. Conversely, what is law are ‘Human Rights’ that are not open to tinkering and tweaking at the political whim of any Government. The irony here is that the UK will have pulled out of the European Court of Human Rights in Strasbourg anyway, so one pan-European (and admittedly supra-national) avenue for recourse - appeal - might no longer be available.

The future is uncertain no matter our phlegm, defiance, ignorance or doggedness. Brexit is a mammoth task and my own feeling is that we are a fortiori heading to a Europe of multiple speeds. I know that the former Italian prime minister Enrico Letta and the Jacques Delors Institute are amongst those individuals or organisations that have been teasing out the various options. But however long it takes to hammer out an agreement, or even if we tumble out of the negotiations, the decision will inevitably affect our lives - and by osmosis our future sovereign or common identities. A self-avowed pessoptimist who also gets it wrong, I hope that some horse sense creeps into the forthcoming exit negotiations - legally, politically but also humanly - so both sides realise that it is in the interest of all parties mutatis mutandis to strike a deal that does not translate into a punitive standoff. Throughout history, we in the UK have been self-confident when facing adversity but we should not forfeit the essence of our compassion in a global world merely because we are emotionally beholden to a forgone past.

A Roman law maxim, Vigilantibus non dormientibus aequitas subvenit, roughly suggests that “equity aids the vigilant, not the sleeping”. We cannot afford to be caught unambitious and asleep: there is too much at stake - for England and Wales, for Northern Ireland and Scotland … and also ineluctably for the EU. And mind you, the future stakes are much higher for the younger generations living in the UK or across Europe today.

Dr Harry Hagopian is a lawyer who holds a Doctorate in Public International Law and an LL.M in Alternative Dispute (Conflict) Resolution.