Brexit and the Right to Remain of EU Nationals

Abstract

This article examines the role of human rights law in protecting the residency of EU nationals living in the UK in the aftermath of the Brexit referendum. It explains how human rights law protects residency by compelling the UK to treat all migrants as individual human rights holders, not as a 'class' to be dealt with through mass expulsion. Moreover, Article 8 of the European Convention on Human Rights provides many EU nationals with a right to remain in the UK based on their family or personal ties. Once that right is engaged, any Article 8(2) ECHR analysis must take into account the individual human person and her human rights, not just the policy with regard to EU citizens as a group. It is simply inconceivable that the UK would be able to justify expelling a migrant on the basis of his or her nationality.

Having established that residency does not simply lie within the discretion of the UK Government, this article then contends that the stance taken by the Government since the Brexit referendum undermines the security of residency that human rights law provides. In that context it argues that human rights law can, and should, do more for migrants than simply preclude deportation, and in particular that it should prevent the state from obfuscating migrants' residency rights. The issues raised by Brexit are unique, but there are some similarities in cases relating to the breakup of the Soviet Union and the Socialist Federal Republic of Yugoslavia. Although many of those cases evince a meagre approach to migrants' rights, the European Court of Human Rights's stance that rights must be genuine and not illusory, can, and should, be harnessed to recognise that states have immense power to threaten and undermine migrants' residency even if they do not expel migrants or issue deportation orders. There is thus potential for Article 8 ECHR to protect those who, although not subject to a deportation order, are vulnerable, particularly when they are faced with delays in regularising or otherwise rectifying uncertainty. This article offers a way of understanding the ECHR rights of migrants and a proposal for us to argue for these rights, make them clear, and insist that the state respects them. In the last resort, it offers a way that we should expect the European Court of Human Rights to engage with these rights, in order to protect vulnerable migrants, and in line with the purpose and history of the Convention.