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Why the EU can regulate the UK citizens’ position in the EU27, but partly won’t.


Thought the European Union didn’t have a say in non-EU immigration? Professor Steve Peers explains this now.



There are two competing bad legal takes on the position of the British citizens in the EU27 after Brexit.

a) the bad EU won’t guarantee their residence;

b) the good EU can’t guarantee their residence because it doesn’t have competence to do so.

The starting point is that the European Union does have competence over non-EU migration — not just Schengen (visas and borders) and asylum, but also legal and illegal migration — but it is shared. That means that if the EU doesn’t act, its Member States have power to do so.

To that end, the Commission’s no-deal paper points out that some EU law on non-EU citizens will apply to British citizens in the EU27 and encourages Member States to give residence permits to “all” British citizens under national or EU law:

Preparing for the withdrawal of the United Kingdom from the European Union on 30 March 2019.

So, the “bad EU wants to make British citizens in the EU27 all illegal” take is the exact opposite of reality. As you can see, the Commission literally said that “all” of them should receive residence permits, but in some cases it will be up to Member States’ law to govern the details.

The defence that “the EU has no power here” doesn’t work either. As you can see, the Commission also referred to EU law partly governing the issue. That is the EU legislation on long-term non-EU residents. This co-exists with national law (Art 13).

Some are very keen to “explain” to me that I am wrong, the European Union has no competence on non-EU citizens. Read the three-volume commentary I co-authored. The first volume of my book on EU Justice and Home Affairs Law (4th edition).

And for primary sources, here is the page on the Commission’s Directorates-General home site that has links to the EU legislation on non-EU legal migration.

I realise some people will find this less persuasive than something on the Internet which they would prefer to believe, but I cannot help them with that. The confusion may be partly due to the UK having an opt-out, so UK law on non-EU citizens is not affected much by EU law.

The problem with the Commission’s approach is twofold. First, while it encourages Member States to give all UK citizens residence permits, their status may fall short of what they would have under EU free movement law, i.e. conditions of stay and equal treatment rights are less.

Secondly, EU legislation on this issue would be a better approach, as it would protect their rights uniformly, guarantee acquired rights and retain free movement within the EU27. I proposed a text for this.

This would be rushed; but the Commission proposed to rush new laws on transport. Alternatively, there could be a ring-fenced treaty for both British citizens in the EU27 and EU citizens in the UK as suggested here.

There is also an argument that “UK citizens cannot be deprived of EU citizenship”. The majority view (which I share) is that this argument does not work, as only nationals of Member States can be citizens of the EU. But I expect this will be litigated, and I would be happy to be wrong.


Conclusion.

The European Union can regulate the British citizens’ position in the EU27, but partly won’t. In absence of EU action, it is the Member States’ responsibility. The Commission should urge them to do more. For comparison, read this on the no-deal implications for the EU citizens in the UK.🔷



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(This piece was first published as a Twitter thread and turned into the above article, with the author’s conscent, with the purpose of reaching a larger audience. It has been minorly edited and corrected.)


(Cover: Pixabay - The EU Commission building, Brussels.)


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Professor of EU, Human Rights & World Trade Law, University of Essex. Latest book: European Union Law (edited with @CSBarnard24, 2nd ed, OUP).
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