Fighting Fund to protect the rights of EU nationals
It’s been a busy week as far as the rights of EU nationals. On Thursday 8th December at the Supreme Court two of the parties made submissions which emphasised both the human rights violations associated with Brexit, as well as the lack of consultation with the 3 million EU nationals resident in the UK.
Manjit Gill QC for the AB (EEA National) Interveners made a strong case that deciding to leave the EU without considering the rights of EU nationals is unlawful.
“The parties who we represent, the AB parties, they are representative of two classes of persons … EU nationals living in this country and those who derive rights of residence from them, principally their family members; and secondly, children, whose continued presence in this country depends on the exercise of them or their carers and family members, of rights derived from EU law… We say that the effect of what the Government now wants to do, is now forced to do, not having thought about it beforehand, is to say that they will use the prerogative to give the Article 50(2) notice; having themselves made an Article 50(1) decision; they don't say the 2015 referendum decision was the decision, they say they themselves, the Government, will make and have made, the decision; and that they will give the Article 50(2) notice under the royal prerogative. And they say that they will give it without there being any prior safeguarding of the rights that would otherwise fall on the day of withdrawal. We say that is simply a complete breach of the non-dispensing principle… What it means is, and I put it like this… be ready to pack your bags and go on that day. It is that stark, because we are not going to give you any guarantees, in fact we are going to use you as a bargaining chip… We say that on the current law, and I am only dealing with law, not -- the current law, not as to what may happen, that is simply not possible, or lawful.
Of course things may change in the future… we will find ways of protecting people in due course. Due course is not good enough for me or for the children that I represent. They need to know what is their position now. Children in particular are entitled to know because of the duties to which we have signed up to under the UN convention, rights of the child, which therefore impose upon us obligations under Article 4 of that convention for progressive implementation of the convention in national law. Children are entitled to know what is going to be their position. Their parents are entitled to know what long-term arrangements are we going to make for them…
Where does that leave the rights of the EEA nationals or their families, people who have been here and the children in particular? It drives a coach and horses through all those rights. It may take two years, it may take longer than two years. That in a sense is even more cruel because it actually prolongs the uncertainty. Not only this we say it is not just about taking away rights; it is about exposing the class whom I represent to criminal liability and summary removal.”
In his written case Patrick Green QC made a strong case that the decision to leave the EU either has not yet been taken or has been taken in an unlawful manner.
“Contrary to the requirement that sufficient notice of an administrative decision be given such that an affected person has an opportunity to bring a challenge thereto, the Secretary of State has yet to state: (a) when it was taken, (b) by whom (other than by mere reference to "the Government"), (c) on what basis, or (d) what considerations were taken into account, if any, other than the referendum result. This is surprising for a decision of such constitutional, economic and social importance.
The Expat Interveners accordingly submit that no decision to leave the EU in accordance the UK's constitutional requirements under Article 50(1) TEU for which there are public law indicia can be identified.
The inability to identify any such decision frustrates any public law challenge to it. Nevertheless, on the case put by the Secretary of State, the sole consideration taken into account would have been a majority vote to leave the EU in the referendum. Any decision taken on this sole basis would be unlawful.
The most obvious, but by no means the only, ground would be the failure to give anxious scrutiny to and/or take account of the fundamental rights of affected persons, such as the Expat Interveners, and in particular those who had no right to vote in the referendum, which, by deciding automatically to follow only the referendum result, the Government ex hypothesi excluded from consideration."
On the 14th the House of Lords Select Committee on Acquired Rights was published. It made clear that many EU nationals in the UK are protected by Human Rights legislation.
"In the absence of a negotiated settlement on which EU rights will be maintained, the ECHR offers a more likely route for successful litigation post-Brexit than the international law doctrine of acquired rights. A greater number of EU rights will overlap with ECHR rights, and the ECHR has an effective national enforcement mechanism in the Human Rights Act 1998.
The two most relevant ECHR rights are the right to family and private life under Article 8 and the right of peaceful enjoyment of possessions under Article 1 of the First Protocol. Article 8 is likely to be invoked in cases of deportations of EU nationals post-Brexit (should such a policy ever be implemented), to seek to prevent the deportation taking place. Article 1 of the First Protocol will be invoked to protect EU rights to tangible and intangible property that overlap with the scope."
In light of these developments we are raising funds to:
1) Challenge the decision to leave the EU as unlawful due to the failure of the Government to consult EU nationals and Expats and consider the implications on them.
2) Challenge the use of EU nationals resident in the UK as pawns in the Brexit negotiations.
In the event that neither of these challenges are possible, either because they are blocked by the courts or the issues regarding continued right to remain for EU nationals are satisfactorily settled, any money will go to help New Europeans continue to support the rights of EU nationals in the UK.
Update on Article 50 intervention
New Europeans, a civil rights organisation founded in 2012 whose aim is to champion freedom of movement, non-discrimination and the principle of solidarity in Europe was today refused permission to intervene in the Article 50 case to be heard at the Supreme Court on the 5th to 8th December 2016.
New Europeans was acting with a group of UK resident EU nationals.
There are about 2.9 million EU citizens resident in the UK. Once again they have been completely ignored in the Brexit decision-making process despite the fact that many have lived here for decades.
EU citizens pay taxes, own property and run businesses, some have made their lives with UK citizens and are raising children (many of which are UK citizens) in the UK. As well as their positive impact on UK society, recent figures from HMRC show that they make an enormous financial contribution – paying £14.7bn a year in income tax and national insurance whilst only claiming £2.6bn in tax credits and child benefit.
New Europeans argued that the Government's decision to leave the EU under Article 50 was unlawful for reasons including its failure to consider the interests of these 2.9 million EU nationals. Further, the uncertainty for EU nationals created by the way in which the Government claims to have taken a decision under Article 50 unjustifiably interferes with their human rights.
Nationals from 53 countries were allowed to vote in the EU referendum on the 23rd June. UK nationals, nationals of the 51 other Commonwealth countries and Irish nationals. Of these 4 are members of the EU – UK, Cyprus, Malta and Ireland. On the other hand nationals of the 24 other EU member states were excluded from the vote. In taking any decision to leave the EU based entirely on this referendum the Government is directly discriminating against a substantial part of the UK population.
Furthermore, the Government has failed to take into account the human rights implications of taking a decision to leave the EU without any referral to the overwhelming majority of EU nationals in the UK.
The use of EU nationals as 'pawns' in the Brexit process is a breach of Article 8 of Human Rights Act.
For these reasons, it is our view that the Secretary of State has fettered his discretion and any such decision by him, or the Government, to leave the EU must be unlawful.
New Europeans were represented by Squire Patton Boggs.
Roger Casale said:
“We are disappointed by the Court's decision and we will take further legal action to uphold the rights of these EU nationals, should the Government win their appeal."
“The denial of the right to be heard in court, yet again, is an extremely worrying feature of this process from the very outset, when the franchise was designed in a manner that was both exclusionary and deeply discriminatory. In the event that the Supreme Court favours the Government view, we would still be faced with a vital and unanswered question. Assuming that the Government had the power to decide to leave the EU without regard to the normal democratic processes, has that decision been properly and lawfully taken?
Unless that question receives an answer from the Courts nobody could be satisfied that, in the terms of Article 50, the UK’s decision to leave the European Union was taken in accordance with its own constitutional requirements.”
For further information, please contact:
Roger Casale, Founder and CEO, New Europeans
T: 07960 586806