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The negotiating period on the exit conditions of the United Kingdom from the European Union is underway. These negotiations are likely to be lengthy and tough. Not only this is a unique event, such a case never having occurred, but, given the amount of time the UK has been an EU Member State, as well as the intertwining of economies, the task is immensely complex. Moreover, the regional dimension plays an important role, as to Scotland whose future within the UK is in question, and Northern Ireland relationship with the Republic of Ireland would have been better off without this new factor.
The first session was concluded by an acknowledgment of failure. The diplomatic terms used underlined the frank nature of the discussions which in fact is a way of saying that the parties disagreed. While the British government counts on a split with zero cost, the European Commission refuses to write off the UK debt, which amounts to several tens of billions of euros. On the one hand, the Brexit was “sold” to British opinion on the basis of an immediate return of the funds, a “Money back” which would condition any agreement. On the other hand, forgetting the compensation is out of question, given the risk of seeing remaining Member States using the “opt out” threat as a strategy whenever they disagree with other Members States. Let’s not forget that this is already happening with regard to migration and asylum policies.
Even if the UK is not part of the Schengen Area, meaning that controls at its borders were always effective – see the (bad) Le Bouquet agreement, signed between France and the UK – it had to abide by the principle of free circulation of European citizens. Hence, numerous non-British EU citizens live and work in the UK while numerous British citizens live and work in another EU Member State. It must be noted that this major issue is not considered as a prerequisite to any other discussion. New Europeans proposed that a separate agreement should be found before engaging in the other Brexit aspects. Nothing of the sort has come about : the British government could not care less and European leaders considering that the issue should be solved by the UK.
This disregard of individuals raises two types of issues that this symposium would like to examine. The first issue relates to the need of making the fate of these European citizens transparent. At present, an immeasurable uncertainty prevails. Taxes, employment, social protection, retirement : the danger area is vast and must be examined. Should a global EU-UK agreement be sought or rather bilateral agreements between the UK and the individual Member States whose nationals are affected? The second issue deals with the upholding of rights. Freedom of movement, social, residence and tax rights : an entire structure is on the brink of collapsing. For now, associations and unions call for maintaining the status quo, thereby keeping untouched the current rights of those persons that remain EU citizens in this transitional period. However, the risk is that companies may already anticipate those changes in the management of their staff and in the rules concerning persons who would not be considered as having access to the same level of rights.
What will be the future for the citizens’ rights? This question was at the heart of the discussions of the first part of AEDH and New Europeans conference. This first session was organized in Brussels on 17 November 2017 in partnership with the European Association of Law Students (ELSA) and brought together political representatives, academics, practitioners, members of civil society, students and citizens. The second part of the conference will take place in London on March 16th, 2018.
Find all the interventions and debates in video on the page dedicated to the event : http://bit.ly/2iinC63
Summary of interventions
Marianne Dony, President of the European Studies Institute
Brexit, an institutional and political shock
Brexit did not mark the decline of the European project. The Brexit camp victory at the British referendum showed that the aspects of identity predominated over economic aspects rejecting de facto globalisation and its corollaries. However, the main fears expressed following this victory have not materialised to the extent expected :
- A reflux in the realisation of the integration process. In any case, Brexit will undoubtedly have the opposite effect through the mutation of the concept of sovereignty.
- The domino effect. Brexit has not managed to trigger a cascade process with the rise of Eurosceptic parties.
- A fall back of the European project on the Single Market. On this point, the observation is more nuanced : the European construction is at a crossroads.
Furthermore, from an institutional point of view, the UK’s exit process from the European Union leaves many questions open and the outcome remains uncertain. Is Brexit really irreversible now that Article 50 has been triggered? Three theses oppose: the notification triggers an irreversible process, the notification can be withdrawn at any time by the United Kingdom, and the notification can be withdrawn upon the agreement by the other Member States. The current status of the United Kingdom is, moreover, very ambiguous, since it is both a Member State and a third State.
Brexit will also have consequences on the composition of the European Parliament. What should be done with the 73 seats currently held by British MEPs? Redistribute them among the remaining 27 Member States or use this opportunity to create the European constituency we have been talking about for so long? Finally, the issue related to the Brexit financial consequences remains to be answered : a final payment as recommended by the Commission or financial obligations conditioned by the withdrawal agreement as desired by the United Kingdom. Yet, in this case, what would happen should there be no agreement? Similarly, with an annual loss of more than EUR 30 billion in terms of own resources, a reform of the own resources system would be more than appropriate. Without, political choices will be difficult. While the European Commission has announced its intention to give priority to security and defence on the one hand, and energy on the other, what will become of the CAP and the cohesion policy?
Cristian Pirvulescu – Member of the European Economic and Social Committee
Brexit and its consequences on free movement within the Schengen area
From a theoretical perspective that is not based on economic and social determinism, Brexit is not surprising in itself. Political things have political causes and the same goes for Brexit. It is therefore necessary to determine its political causes in order to understand and apprehend it. Obviously, the origin of Brexit is political : without the referendum organised by David Cameron, there would simply be no Brexit.
Brexit is the story of a media, populist and anti-democratic coup that has been presented, so as to gain legitimacy, as a democratic revolution, as a revenge of the British people against London and Brussels liberal and cosmopolitan elites. Several confusions and ambiguities contributed to this political development. In the first place, a political/ideological confusion consecutive of majoritarism, i.e. the obstinacy to create an artificial majority in the purpose of giving something some legitimacy. Majority is presented as the expression of popular or national sovereignty. In his pamphlet ’What is the Third State?’, Father Sieyès emphasised that popular sovereignty should not be confused with national sovereignty, since popular sovereignty cannot be applied in the modern state. However, in the Brexit case, there is a serious confusion between the majority, that is usually relative, and the totality. A confusion that can be found in the media according to which ’British people decided to leave Europe’: the terminology that they use transforms the 52% of British people who voted ’Leave’ into 100% of the population, reducing to nothing the remaining 48 % that voted ’Remain’. In this ambivalent logic where everything is black or white, more complex things are evacuated even though democracy is the opposite of majoritarism since it is based on consensus and the protection of minorities. This first confusion leads to populism: the idea that the people, the true people, that is to say the majority, are always right. Populism is not an ideology but a means of communicating political messages to media consumers. Messages are calibrated in order to be simple and understandable even though the reality is complicated. The obsession for simplicity gives space to the conspiracy theories which in turn facilitate the success of fake news. The Brexit campaign was a fertile ground for fake news. Majoritarism was reinforced by the referendum which transforms complex problems into a mere arithmetic operation that is the outcome of a second type of confusion, electoral confusion. Electoral confusion is played out between the concepts of voting and democracy : voting is used to circumvent democracy and human rights.
Endogenous factors, linked to the traditional divisions existing in the British political landscape, also explain Brexit : regional, identity and socio-economic divisions. Exogenous factors have also been at work: the Russian intervention and the humanitarian crisis transformed by the media into an invasion of Muslim refugees have facilitated pro-Brexit propaganda. In the end, it was not the United Kingdom that chose to end 43 years of EU membership, but an easily manipulated minority who voted to demonstrate its rejection of politics. Although the results of the referendum were not legally binding, the United Kingdom has formally notified its intentions hence opening a two-year period to prepare for its exit.
As regards to the European and the Schengen area borders, should the Brexit takes place, the effects of the latter could be positive since Europeans will have a particular interest in demonstrating that the Union is still functioning and that the free movement remains a common policy of major importance. Once the Brexit is effective, depending on the terms and conditions negotiated between the European Union and the United Kingdom, several scenarios are possible: the need to obtain a visa to get there, the free movement of persons or even specific restrictions on workers. In this overall issue of the free movement of people, the case of the Northern Irish border is particularly worrying because of the strong identity divisions already existing. Brexit is both a practical and a theoretical test : European democracies must review their practices and adapt to a world in which citizenship is not definitively granted.
Pamela Fitzpatrick, Director of Harrow Law Centre
Brexit and its social impact n the European Union and the United Kingdom
Brexit was not a complete surprise. For two decades, successive British governments have blamed the European institutions and migrants as responsible for the problems faced by British society, and all in all, this has contributed to Brexit due to the rhetoric that once out of the Union, everything will be better in the United Kingdom. The Harrow Law Centre is a charity which provides free legal advice and representation on matters of social welfare law (housing, public law, welfare benefits, and immigration – rights of EU nationals, asylum and trafficking).
While at present European citizens enjoy the rights of freedom of movement and to equal treatment, what will happen after Brexit? In the United Kingdom, European nationals are all the more worried that the current situation is already problematic : over the last 10 years, the rights of European nationals have already been reduced. Among the sources of concern : the rights of workers and others exercising treaty rights on Brexit, the rights of those settled in the UK, the co-ordination of social security, British citizens living in other EU states, the authorities that will judge and enforce EU rights. For the moment, European laws are said to be transposed into British law but the lack of interpretation regarding the European laws already transposed already lead to many problems as demonstrated by three practical cases :
- Magda a Polish national worked in the UK for 4 years. She became ill with severe depression and lost her job. She claimed benefits which were refused on the basis she had not right of residence in the UK.
- A Romanian man who had worked in the UK for several years married to a non EU national. Following delivery of their first child the couple received a bill from the Health Trust for several thousands of pounds. The couple had shown the Trust evidence of being an EU worker but someone from the Trust contacted the Home Office to check their immigration status. When the Home Office said it had no record of the family the hospital trust wrongly interpreted this to mean the family were not lawfully in the UK.
- A Polish man working in the UK brought his mother to live with him and his family. The mother had early onset dementia. Social services refused to provide any assistance on the basis the mother had never worked in the UK.
In all cases, the intervention of the Harrow Law Centre allowed these people to benefit from their rights.
Regarding the UK housing crisis, migrants are generally bearing the blame as there would be too many of them. In reality, there is enough housing in UK but no one can afford them. European Union citizens should be able to access UK benefits in the same way as British citizens. However, the UK has introduced a range of laws to prevent EU nationals from claiming some benefits and housing or have additional requirements placed on them such as residency tests. Post-Brexit future looks very uncertain and is causing huge anxiety to EU nationals living in UK. As we near the date of Brexit and still have no clarity EU migrants may vote with their feet and go to work elsewhere.
Dr. María-Teresa Gil-Bazo, Senior Lecturer in law at Newcastle Law School and Member of the European Law Institute in Vienna
Brexit and its implications for asylum and migration policies
The United Kingdom has never been a full member of the European asylum and migration policies. This is particularly the consequence of Protocols 2, 3 and 4 of the Amsterdam Treaty which allow the United Kingdom to opt-in or opt-out of various European policies including the Schengen area and the asylum policy.
At the time of the Amsterdam Treaty, the British government decided to opt-in the Asylum Package since it only meant establishing minimum standards. On the other hand, with regard to migration policies, the United Kingdom opt-out regarding the Family Reunification Directive (2003), the Long Term Residence Directive (2003 and 2011), and the Returns Directive (2008).
With the Lisbon Treaty, the United Kingdom refused, once again, to take part in the Schengen Agreement, with few exceptions. With regard to the European Charter of Fundamental Rights, the United Kingdom made sure that it retains responsibility for the power of interpretation and that the Charter would not create any new rights but merely codifies the existing ones. Regarding the Common European Asylum System, the UK Government only agreed to fully participate in the Dublin III Regulation (2013) which establishes the principle that there can only be one examination of an asylum application in Europe and the country responsible for this examination is the one that has allowed the asylum seeker to enter, voluntarily or not. With regard to the CEAS other instruments, UK is only bound by CEAS Stage 1 related to minimum standards. The United Kingdom also agreed to participate in the Regulations EASO (2010). Due to the legal vacuum caused by the gap between its full accession to the Treaty of Amsterdam asylum package and a limited full accession to the Dublin III Regulation at the time of the Lisbon Treaty, the UK Government indicated that the minimum criteria established with Dublin II would be maintained under British law. Hence, UK is bound by certain obligations under the European asylum legislation, but none in relation to migration.
The European Union Withdrawal Bill states that :
- ‘EU-derived domestic legislation, as it has effect in domestic law immediately before exit day, continues to have effect in domestic law on and after exit day’,
- ‘Direct EU legislation, so far as operative immediately before exit day, forms part of domestic law on and after exit day.’
This means that the Dublin III Regulation and the first level of the asylum package will still apply after Brexit but no longer under European law : these will become domestic provisions on which the Court of Justice of the European Union will have no power. As for the European Charter of Fundamental Rights, it won’t be part of domestic law on or after exit day. However, some Charter principles have no equivalent in UK law : the right to asylum (art.18), the right to non-refoulement (art.19), the right to an effective remedy (Article 47) and the scope of the guaranteed rights (Article 52).
Even after Brexit, UK will be bound by a number of legal obligations related to asylum :
- The Treaty with the European Union (on the model of those existing with Denmark, Iceland, Liechtenstein, Norway and Switzerland),
- The European Convention of Human Rights and the European Court of Human Rights,
- The 1951 United Nations Convention on the Status of Refugees