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What legal rights will EU citizens have after a no-deal Brexit?
Credit: Stephen Darlington on Flickr

What legal rights will EU citizens have after a no-deal Brexit?

With a ‘no-deal’ Brexit looking increasingly likely — and less than three months away – new research by Public Law Project (PLP) shows that EU citizens lack statutory protection for their rights.

PLP’s new briefing on EU citizens’ rights after a ‘no-deal’ Brexit provides EU citizens in the UK, and those advising them of their rights, with a single reference point on what the law currently says.

The paper, which results from the work of our Statutory Instruments Filtering and Tracking project, draws on still-evolving primary legislation, statutory instruments, explanatory notes and government policy documents. It will be updated each month until the Immigration and Social Security (Co-ordination) Bill is passed by Parliament.

Aside from its practical use in advising EU citizens about immigration, settled status, and access to NHS and education services, the research also shows that the current legal framework does not offer much by way of statutory protection. 

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Whilst EU citizens who arrive in the UK before exit day appear to have their rights to stay and to access basic services protected, there is very little protection for them contained in primary legislation. Much of what is said about their rights is contained in secondary legislation, also known as statutory instruments, that can easily be altered by further primary or secondary legislation. 

Of greater concern is that much of what is recorded about EU citizens’ rights is found not in primary or even secondary legislation but in government policy documents and explanatory notes. These may well reflect the government’s current intentions on the rights of EU citizens but they do not provide a lot of certainty as to future arrangements. 

For example, the government has stated that it intends to make regulations under clause 4 of the Immigration Bill to protect the rights of EU citizens resident in the UK before exit day. But  we do not yet know what these regulations will say because, as mentioned above, the bill granting the power to make these regulations has not been passed yet. It has been awaiting report stage for some months and it is not known when it will become law.  

The government has also said that in a no-deal scenario EU citizens and their family members lawfully residing in the UK will “be able to continue to access in country benefits and services on broadly the same terms as now”. This promise is contained in the government’s policy paper on citizens’ rights but it is not clear what is meant by the phrase “broadly the same terms”. 

Overall, our research paper should be of some comfort to EU citizens living in the UK. The government has made many statements signalling an intent to protect the rights of those living in the UK prior to exit day. However, the Brexit legislative landscape is changing every day and very few rights are set in stone. What happens in the next few months will be crucial in determining how secure those rights actually are and the extent to which they are shaped by the executive alone or with appropriate oversight and scrutiny from Parliament. 

Download the latest version of PLP’s paper on EU citizens’ rights here.

Alexandra Sinclair

Alexandra Sinclair is Fellow in Brexit, Parliament and the Rule of Law at the Public Law Project. She has an LLB(hons) from Victoria University of Wellington, New Zealand and an LL.M from Columbia Law School where she studied as a Fulbright Scholar. Alexandra has worked as a judges’ clerk at the New Zealand High Court and as a barrister in Auckland, New Zealand. She was awarded the Cleary Memorial Prize by the New Zealand Law Foundation in 2015 for showing outstanding promise in the legal profession.

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