Abstract
The treatment by the United Kingdom of Union citizens remaining on its territory after Brexit and conversely that of UK nationals by EU27 Member States on theirs has given rise to much discussion and analysis. By contrast, there has been comparatively little systematic and detailed exploration of the question of the impact of Brexit on the exercise of Union citizens’ rights against their own Member State. It is an issue which is for the most part ignored in the current Withdrawal Agreement. The purpose of this article is to show that this blind spot opens up a potential gap in legal protection of the rights of Union citizens, which is likely to remain regardless of the outcome of the Brexit negotiations and whether a withdrawal agreement is concluded or not. The paper discusses the extent to which the adversarial nature of the withdrawal process has contributed to this failure to address this issue and the ways in which courts could step in to provide the legal protection that political processes were unable to deliver.
Highlights
The consequences of the withdrawal of the United Kingdom from the European Union on the rights of Union citizens is clearly an important aspect of the Brexit process
While discussions on the other two main topics addressed in the initial phase of the process, namely settlement of the UK’s financial obligations and avoidance of a physical border on the island of Ireland were protracted, there was a greater element of consensus between the negotiators on how to address the question of citizens’ rights after Brexit, notwithstanding the persistence of some divergent perspectives on specific aspects right up to November 2018, when agreement was reached on a Withdrawal Agreement.[2]
Under Article 10 of the Withdrawal Agreement, the provisions on citizens’ rights are to apply to Union citizens who have exercised their Union law right to reside in the United Kingdom and UK nationals who have exercised their Union law right to reside in an EU27 Member State[9] up to the end of the transition period contemplated in Article 126 of the Withdrawal Agreement.[10]
Summary
The consequences of the withdrawal of the United Kingdom from the European Union on the rights of Union citizens is clearly an important aspect of the Brexit process. While negotiations were re-opened in Autumn 2019 following the coming into office of a new UK government in the summer, the revised text of the Withdrawal Agreement agreed in November 20193 has not amended Part Two of the Agreement,[4] in which the provisions devoted to citizens’ rights are contained. This article aims to assess the extent of the gap in the protection of citizens’ rights after Brexit resulting from the failure to sufficiently consider the implications of Brexit of the relationship between nationals and their own Member States. How far the structure of the Article 50 process itself contributes to the problem will be discussed (Section 4)
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