The Position of EU Citizens in the UK and of the UK Citizens in the EU27 Post-Brexit: Between Law and Political Constitutionalism

Abstract

The chapter discusses the position of the EU citizens in the UK and of the UK citizens in the remaining Member States of the EU after the exit of the UK from the EU. These two groups jointly are approximately 5 million people. This means, on the one hand, that the legal question of their continuous right to reside and enjoy the access to health, education and so on affects a large number of persons, comparable with one of the smaller Member States of the EU. On the other hand, the power over the destiny of such a large group seems to be present an irresistible temptation to the politicians that will lead the Brexit negotiations. Indeed, on a number of occasions, political leaders have refused to offer any guarantees as to the position of these persons until negotiations have taken place. More bluntly, EU citizens in the UK had been described as of the Government’s “main cards in the negotiating process” (Liam Fox). The chapter argues that the position of the citizens cannot be seen as merely a subject to the negotiations between the UK Government and the institutions of the Union. The space for negotiations is importantly limited by the protection of the migrants stemming from international human rights law (ECHR) and national constitutional law. The assessment of the legal situation of the EU and UK citizens ought to draw on the insights from the case studies of disintegrated federal systems.