Breaching International Law in a General and Far-Reaching Way: The Northern Ireland Protocol Bill

 

Colin Murray, Reader in Public Law, Newcastle Law School

Photo credit: Dom0803, via Wikimedia Commons

 

In September 2020 Brandon Lewis set the tone for the UK’s interactions with the Northern Ireland Protocol by admitting that the Internal Market Bill, about to be introduced into Westminster, by admitting that the proposed legislation would breach the UK’s international commitments under the Withdrawal Agreement in a ‘very specific and limited way’. Ahead of the publication of the new Northern Ireland Protocol Bill, Lewis has been determined not to make the same mistake twice and has insisted that it ‘won’t break international law’. The Bill does, and we’re a long way beyond the specific and limited.

 

The Protocol and Brexit

The UK Government insists that the Protocol cannot continue in its current form as it does not command cross-community consent within Northern Ireland. That Brexit did not command cross community consent and the Protocol operates to mitigate some of the impacts of Brexit on Northern Ireland is written out of this analysis. The precise nature of the breach of the 1998 Agreement is, at best, vague. The UK Government has hitherto actively defended litigation against the Protocol on the basis that it is compliant with the 1998 Agreement. Cross-community consent, moreover, attaches under the Agreement and its implementing legislation to decisions within the Northern Ireland Assembly, not to international treaties concluded by the UK Government.

The UK Government’s other common refrain is that the Protocol it agreed is not the problem, but rather that the EU has been so dogmatic in the application of its trade and goods regulation provisions that it has become unworkable. This position, prominent in the legal position accompanying the new Bill, is unsustainable. The EU has repeatedly agreed reworks to the operation of the Protocol as concluded in 2019, in areas including state aid, medicine supply and in extending grace periods covering certain sectors. If the Protocol is more challenging to operate in practice than some had at first hoped, this is in large part the result to the limited nature of the Trade and Co-operation Agreement (and in particular the UK rejecting maintaining alignment with EU food and agriculture standards). The UK Government’s choices are entirely bound up in the supposed ‘peril that has emerged’ for Northern Ireland.

Brexit has brought with it inevitable dislocations for the Northern Ireland economy, and few dispute that the Protocol could be improved in its operation (a suite of EU reform proposals have been on the table since October 2021, and it has moved unilaterally to address highly contentious issues around medicines). But there is very little hard data in the public domain on the nature of the supposed divergences which have resulted from the Protocol, as opposed to Brexit itself, and even if there was, this would be a reason to trigger the trade protection provision within the Protocol, Article 16, rather than to seek to abandon particular obligations. It is untenable for the UK Government to invoke the doctrine of necessity, based on a legal position that it ‘has no other way of safeguarding the essential interests at stake than through the adoption of the legislative solution’, when its own conduct has contributed to the situation, and when it has made no effort to use the specific mechanisms available within the Protocol for addressing such societal concerns. 

Every time the possibility of triggering Article 16 has come up, since it was prominently raised in the July 2021 Command Paper, the UK Government has drawn back. The Owen Patterson affair, Party-gate and Putin’s invasion of Ukraine all undoubtedly disrupted this agenda. Equally, however, the limitsof Article 16 loomed large; responses using this provision would themselves amount to a breach of the Protocol if they were not proportionate to substantive problems. Article 16 was not a magic wand capable of sweeping away inconvenient aspects of the Protocol. For a UK Government committed to aggressively diverging from EU standards the Protocol presents a pressing problem; every one of its own divergences will harden barriers to trade in the Irish sea. It would like to achieve far reaching Protocol reform on its own terms to avoid that outcome. Ministerial talk of ‘safeguarding’ the 1998 Agreement is nothing more than a superficial pretext.

The repeated failures to trigger Article 16 in the last year (involving presenting the data and crafting a targeted response within its terms) nonetheless left the Democratic Unionist Party (DUP) more exposed and incurred a debt to their thwarted expectations. The party, as a result, collapsed the Northern Ireland Executive in February and have been refusing to engage in any form of power-sharing since last month’s Assembly elections. It is now so distrustful of the UK Government’s position that they remain sceptical of reengaging with power-sharing processes in Northern Ireland even with the publication of the new legislation, even as the Foreign Secretary fumes that they should now ‘get on with it’.    

 

The Protocol Bill

The Bill, on its face, would appear to be everything that the DUP could ask for and more. But it is precisely because it is so far reaching, and so reliant on placing powers into the hands of ministers, that calls into question whether it can make it onto the statute book in its present form. At present, the EU law obligations which remain applicable to Northern Ireland under the Protocol flow directly into domestic law by the ‘conduit pipe’, to use the language of the UK Supreme Court in Miller, of section 7A of the European Union (Withdrawal) Act 2018. Clause 2 of the new Bill excludes a swathe of Protocol provisions from the scope of section 7A, cutting the pipe. This does not, of itself, absolve the UK of its international obligations. The EU can continue to take action against the UK for this breach of the Withdrawal Agreement. But it severs the connection between these Protocol obligations and domestic law.  

The Protocol provisions directly excluded from the operation of section 7A include all of its provisions relating to the movement of goods, including customs, (clause 4) and the regulation of goods (clause 8), state aid rules (clause 12) and the enforcement role of the Court of Justice of the European Union (clause 13). In each of these regards, ministers are given far-reaching powers to make new domestic law, enabling the UK Government to substitute its own scheme in place of the Protocol’s rules. Clause 22 confirms that ministers can make regulations under this Act to make any provision which could be made by an Act of Parliament. The supposed limitation to this power, repeated throughout the Bill, is that the regulations are such that the minister ‘considers appropriate’ in connection with the Protocol, the broader Withdrawal Agreement or this legislation. This is anything but a limited and specific breach of the UK’s international commitments; it utterly traduces the Protocol. Moreover, the powers granted to ministers are remarkably broad. Powers in the same terms faced the most strenuous opposition on grounds of side-lining Parliament when they were included in the Internal Market Bill as proposed, and there is no reason to think that the House of Lords, in particular, will be any more receptive to these powers in this context.

Clause 15 of the Bill purports to protect the operation of the Protocol’s provisions on human rights and equality (Article 2), the Common Travel Area (Article 3) and North-South Co-operation (Article 11). Ministers do not have the power to add these provisions to the Bill’s stated exclusions from the operation of section 7A. The Protocol’s human rights and equality commitments rely upon the operation of Court of Justice jurisprudence which explains how the relevant EU law functions. Thus, when clause 14 of the Bill sets out broad exclusions to domestic courts drawing, within the terms Article 13 of the Protocol, on Court of Justice jurisprudence or general principles of EU law, it does so only with regard to excluded provisions. This would appear to be an attempt to limit the number of fights the Bill starts, and to insulate the UK Government from accusations that it is undermining these high profile (but hitherto uncontroversial) arrangements. But it is irreconcilable with clause 20, which asserts (with no stated protection for Article 2) that courts and tribunals are not bound by ‘any principles laid down, or any decisions made, on or after the day on which this section comes into force by the European Court’. The overriding effect of this general exclusion is remove the courts in Northern Ireland obligation to interpret the provisions of the Protocol ‘in conformity’ with relevant Court of Justice case law. The Bill claims to protect the Protocol’s human rights and equality provisions in one clause, but undermines their substantive operation in another.  

The Bill’s explanatory notes contain a commitmentthat ‘the UK Government will write to the devolved administrations to seek consent to legislate in the normal manner’. This, of course, is a hollow commitment when Stormont is not functioning. And even if it was functioning, the track record of Brexit legislation establishes that the UK Government is willing to ignore the position of a clear majority of the Northern Ireland Assembly who have expressed their opposition to these terms. Clause 15, moreover, does not protect the operation of the Article 18 “Stormont lock” from being excluded from domestic law by ministers if there is a chance that majority support for the Protocol in the vote due in 2024 would embarrass the Government (not one of the permitted purposes, but they are so broadly drawn as to effectively allow for ministers to pursue that end under another pretext).

Which brings us to the negotiated settlement clause. Clause 19 acknowledges that a new agreement can be made between the UK and EU which modifies, supplements or replaces the Northern Ireland Protocol, in whole or part. In those circumstances ministers can make regulations to give effect to that Agreement. Furthermore, under clause 15, this can include turning back on the conduit pipe between the Protocol and domestic law. This whole spiralling crisis can be disappeared as swiftly as a bad dream in Dallas. But in UK constitutional terms, all of this is stage managed by the Government. Just as the UK Government has finally accepted more extensive trade treaty scrutiny arrangementsin recent weeks, this Bill pointedly excepts any reworking of the Protocol from them. Parliament, under this Bill, will be giving ministers the power to immediately make regulations to give effect to such an Agreement without first jumping through processes like public consultations. 

 

The costs of breaking the Protocol

The EU has a range of options open in reaction to the Bill. It can institute infringement proceedings before the Court of Justice of the European Union in light of the provisions at issue and adopt its own targeted responses in retaliation for the breach. It can also seek to propose further measures to address the problems it has identified with the Protocol. The problem for the EU, however, and ultimately for the UK Government, is that Brussels is unlikely to want to be seen to facilitating this mode of relations by the UK.

The costs of this Bill, however, extend beyond the EU’s immediate reaction. Johnson might command a large Commons majority, but this is less reliable after the scale of last week’s vote of no confidence. The Conservative parliamentary party is likely to become even more fractious if much of its time over the coming months is spent in a fight over the Protocol when there are so many issues of urgent concern. A Lords majority are all but certain to use its powers to delay proposals for a full parliamentary session, especially in light of the consequences for the UK’s international standing of its flouting of such commitments and the possibility that, in seeking to placate Unionism, Northern Ireland’s other parties will become alienated from power sharing.

This generates a considerable presentation problem for Johnson; the Bill must appear sufficiently far reaching to assuage the DUP and sections of his own back benches, but not so extreme as to galvanise parliamentary opposition and to provoke a severe response from the EU. Hence the disconnect between the UK Government’s expressed position that the Protocol ‘is clearly undermining the Belfast Good Friday Agreement’ and the Prime Minister’s insistence that these new proposals amount to ‘a relatively trivialset of adjustments in the grand scheme of things’. The UK Government is breaching its international commitments, but it would rather other people say that than admit this reality.

 

Threats work?

Back in December 2020, the Internal Market Bill threat to part of the Protocol was withdrawnfollowing an Agreement in the EU-UK Joint Committee on how the Protocol would be implemented. In Brexit lore, only such tough actions yield results from the EU. And yet, the alternative of careful technocratic negotiation and full data exchange on goods movements by the UK remains a counter-factual scenario. Even after months of talks, there isn’t a clear public account of why the UK Government is rejecting the EU’s October 2021 proposals outright.

Picking fights with the EU energises Brexit’s most ardent supporters and bringing about this crisis point might thus be a way for the UK Government to sell an eventual compromise (they pushed as hard as possible to get changes). For the EU, having seen this before, this is not a pattern of engagement that it wants to encourage. Not only will Brussels perceive the risk that the UK Government will keep coming back for more, but why should it bail out Johnson with further compromises when it knows that his position is so weakened and it might soon have to deal with a successor?

The EU therefore appears to be biding its time; this legislation faces a long journey through Parliament (particularly in light of the likelihood that it will not pass the Lords without a year’s delay). It appears ready to recommence infringement proceedings against the UK and even to publish its own blueprint for Protocol reform. Any advance on the “express” channel and food and agriculture approach set out in the October 2021 proposals will take it very much into the “green/red” lane territory that the UK Government is discussing; the fabled landing zone. Johnson’s entire strategy is reliant on the EU not using the full range of reactions open to it in response to this threaton the basis that doing so would further destabilise Northern Ireland.

 

A bumpy landing, if a landing at all?

The risks in this approach are obvious. Too many actors need to accept contradictory messages at one time. The EU needs to watch the UK tear up an Agreement in front of its nose, but trust that Johnson is only doing what he is doing to bring the DUP back on board (that this legislation is all a bit of theatre before a compromise). The DUP, by contrast, have to accept that legislation so outlandish in its terms that it has no chance of making the statute book in the next 18 months without being significantly watered down, provides a basis for re-entering power sharing. They must be so enthralled by its scope that they ignore its unfeasibility.

Johnson’s weakness, moreover, encourages everyone else to manoeuvre around him. When it came to the “Stormont lock”, the main concession that Johnson gained from EU in 2019, Brussels had held off on offering such an arrangement to Theresa May when her own premiership appeared to be on its last legs. The Commission may have announced that a further package of reform proposals are coming, but they would have to be completely on board with Johnson’s choreography (and very confident in his position) to announce these plans ahead of the forthcoming by-elections.

Maybe some of the tensions which have built up in Northern Ireland around the Protocol will dissipate as a result of this Bill. Perhaps another compromise will be reached without it ever becoming law. But if it isn’t, and this legislation enters force in its current form, the prospects for EU-UK relations, for the stability of Northern Ireland, and for the executive dominance of the UK’s constitutional order will be invidious. And even in the best-case scenario, the current UK Government’s mode of engagement with any issue that involves Europe is set. We’re just waiting for the next crisis. 

 

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It’s the end – but the moment has been prepared for: the CJEU confirms that UK citizens have lost EU citizenship

 

Professor Steve Peers, University of Essex

In today’s judgment, the CJEU has finally confirmed that UK citizens lost EU citizenship as a consequence of Brexit, following the earlier Advocate-General’s opinion, which I discussed here. (There are other pending cases on this issue – see my compilation of Brexit litigation – but there’s no reason to think that the CJEU would decide them differently).

The judgment is striking for the extent to which it dismisses arguments that British citizens have retained EU citizenship. It’s definitely the end of an era. And yet, it also contains foreshadowing of issues that will be relevant to the post-Brexit future relationship between the UK and the EU.

 

Summary of the judgment

The case concerned a UK citizen resident in France, who lost the right to vote in local elections following Brexit day (1 February 2020) as a consequence of no longer being a national of a Member State, and therefore no longer having the right to vote in local elections. She challenged her removal from the electoral roll on the grounds that she could no longer vote in the UK (as she had been abroad more than 15 years), and a French court asked the CJEU questions about the interpretation of EU law and the validity of the EU Council decision to conclude the withdrawal agreement.  In the UK citizen’s view, the loss of EU citizenship status ‘cannot be an automatic consequence of the United Kingdom’s withdrawal from the European Union’, because ‘that loss infringes the principles of legal certainty and proportionality and also constitutes discrimination between Union citizens and an infringement of her freedom of movement’.

However, the Court began by observing that ‘citizenship of the Union requires possession of the nationality of a Member State’, by reference to the Treaty provisions which say just that. In the Court’s view, ‘the authors of the Treaties thus established an inseparable and exclusive link between possession of the nationality of a Member State and not only the acquisition, but also the retention, of the status of citizen of the Union’ (emphasis added). The Court placed its prior case law holding that EU citizenship ‘is destined to be the fundamental status of nationals of the Member States’ in that context. It also noted that in the various Treaty provisions on EU citizens’ rights, ‘none of those provisions enshrines that right in favour of nationals of a third State’.

It then agreed with the Commission’s argument that there was no exception from those who moved within the EU: the exercise of free movement rights is ‘consequently, not such as to enable him or her to retain the status of citizen of the Union and all the rights attached thereto by the FEU Treaty if, following the withdrawal of his or her State of origin from the European Union, he or she no longer holds the nationality of a Member State’.

Secondly, the Court reiterated prior case law that the UK chose to leave unilaterally, ‘in accordance with its own constitutional requirements’, and that the leaving Member State is not ‘required to take its decision in concert with the other Member States or with the EU institutions’: ‘[t]he decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice’. Having left the EU in accordance with Article 50, the UK ‘is no longer, as from’ the date of entry into force of the withdrawal agreement, ‘a Member State’. It followed that ‘as from 1 February 2020, United Kingdom nationals no longer hold the nationality of a Member State, but that of a third State’. And ‘possession of the nationality of a Member State is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status. The loss of nationality of a Member State therefore entails, for the person concerned, the automatic loss of his or her status as a citizen of the Union’ (emphasis added). Being ‘nationals of a third State as from 1 February 2020’, UK citizens ‘lost the status of a citizen of the Union as from that date’, so ‘no longer enjoy’ voting rights in local elections. ‘It is irrelevant, in that regard, that United Kingdom nationals have previously exercised their right to reside in a Member State’.

Was the loss of EU citizenship disproportionate? In the Court’s view, this was ‘an automatic consequence of the sole sovereign decision taken by the United Kingdom to withdraw from the European Union’; and the 15-year rule ‘is a choice of electoral law made by that former Member State, now a third State’. There was no need to carry out an ‘individual examination’ of the loss of citizenship: here the Court distinguished Brexit from its prior case law in which it ruled that loss of EU citizenship resulting from a Member State depriving a person of its nationality in individual cases needed to be justified – as distinct from (again) ‘the automatic result of a sovereign decision made by a former Member State, under Article 50(1) TEU, to withdraw from the European Union and thus to become a third State with respect to the European Union’. So ‘case-law arising from those various judgments cannot therefore be applied to a situation such as that in the main proceedings’.

The Court then dismissed a more technical argument that the withdrawal agreement must be interpreted to mean that voting rights in local elections for British citizens were retained. (In fact, the provisions on the transition period expressly excluded the application of this right). The Court observed that the argument being made ‘would create an asymmetry between the rights conferred by that agreement on United Kingdom nationals and Union citizens’, which it ruled was ‘contrary to the purpose of that agreement’, as the preamble stated the objective of ensuring ‘mutual protection for citizens of the Union and for United Kingdom nationals who exercised their respective rights of free movement before the end of the transition period’.

Similarly, the Court noted that after the end of the transition period, the citizens’ rights Part of the withdrawal agreement (discussed here) ‘lays down…rules designed to protect, on a reciprocal and equal basis, the situation of citizens of the Union and that of United Kingdom nationals…who exercised their rights to freedom of movement before the end of the transition period.’ It stated that ‘[t]he purpose of those rules, which apply…as from the end of the transition period, is…to ensure reciprocal protection for Union citizens and United Kingdom nationals….those rules concern the rights connected with residence, the rights of employed and self-employed persons, professional qualifications and the coordination of social security systems.’ But the citizens’ rights part did not retain voting rights after the end of the transition period either. The prohibition on discrimination on grounds of nationality in the withdrawal agreement only applied to citizens’ rights listed in the agreement – which did not include voting rights. Yet again, the Court noted that the deprivation of this right followed from ‘the United Kingdom’s sovereign decision to withdraw from the European Union’. Various rights in the EU Treaties equally did not help, because (again) UK citizens ‘are no longer nationals of a Member State’.

The Court did, however, note that Member States retain a right ‘to grant, under conditions which they lay down in their national law, a right to vote and to stand as a candidate to nationals of a third State residing in their territory’. (A number of Member States and the UK have indeed to some extent retained voting rights in local elections).

Next, the Court turned to questions about the validity of the Council’s decision to conclude the withdrawal agreement. It confirmed prior case law that it had the jurisdiction to examine whether treaties which the EU has concluded are ‘compatible with the Treaties and with the rules of international law which, in accordance with the Treaties, are binding on the Union’, although in that context it could only rule on whether the EU decision concludingthe treaty was valid, not whether the treaty itself was valid. However, the Court ruled that arguments about voting in European Parliament elections, and EU citizens voting in the UK, were irrelevant – focussing on the issue litigated in the national court (UK citizens voting in the EU).

The Court dismissed all the arguments that the decision to conclude the withdrawal agreement was invalid. Again, various Articles of the EU Treaties were not relevant, because as Article 50 says, the Treaties have ‘ceased to apply to the United Kingdom from the date of entry into force of that agreement’, therefore UK nationals ‘no longer hold, as from that date, the nationality of a Member State but that of a third State. It follows that, as from that date, they are no longer citizens of the Union.’

As for the principle of proportionality, the Court took the view that:

there is nothing in the documents before the Court to suggest that the European Union, as a contracting party to the Withdrawal Agreement, exceeded the limits of its discretion in the conduct of external relations, by not requiring that, in that agreement in general or in Article 127 thereof in particular, a right to vote and to stand as a candidate in municipal elections in the Member State of residence be provided for United Kingdom nationals who exercised their right to reside in a Member State before the end of the transition period.

It reiterated prior case law that ‘the EU institutions enjoy broad discretion in policy decisions in the conduct of external relations’ and noted that:

In the exercise of their prerogatives in that area, those institutions may enter into international agreements based, inter alia, on the principle of reciprocity and mutual advantages. Thus, they are not required to grant, unilaterally, third-country nationals rights such as the right to vote and to stand as a candidate in municipal elections in the Member State of residence, which, moreover, is reserved solely to Union citizens….

Therefore the EU Council ‘cannot be criticised for’ concluding the withdrawal agreement without ensuring a continued right to vote for UK citizens in local EU elections.  And again, the loss of a voting right in the UK under the 15-year rule was a decision by the UK, not attributable to the EU.

 

Comments

The judgment is very similar to the Advocate-General’s opinion, although it does not include the point in the opinion that Member States chose not to confer on the EU the power to determine who can become an EU citizen. I don’t think this means it’s likely that the Court would rule, if asked somehow, that the EU does have such power; its judgment implicitly suggests there’s no such power (as the judgment confirms that EU citizenship is exclusively for nationals of Member States). In any event, there’s no sign that the EU institutions and Member States have any interest in unilaterally creating some form of EU consolation citizenship for Brits. The excited suggestion of one MEP to this end is not a source of EU law.

Nor does the judgment repeat the opinion’s observation that the applicant could simply obtain French citizenship, or the explicit conclusion that the applicant had no legitimate expectation to the retention of EU citizenship (although one might conclude that the Court implicitly rejects this when it attributes the responsibility for the consequences of withdrawal to the UK).

The centre-piece of the Court’s judgment is the simple linguistic interpretation of the Treaties: EU citizenship is conferred upon nationals of Member States; the UK is no longer a Member State; therefore UK nationals are no longer citizens of the Union. The Court does not explicitly address the argument that the Treaties only provide rules on the acquisitionof EU citizenship, but not its loss; but it implicitly rejects them by ruling that the loss of EU citizenship follows from the withdrawal from the EU. In my view, this line of argument is unfounded because it imports words into the Treaties that don’t exist: there’s no wording in the definition of EU citizenship in the Treaties to suggest that this is solely a rule on how that citizenship is acquired. And it’s reasonable to deduce that there’s no need for an explicit provision on the loss of EU citizenship, because Article 50 covers that ground by necessary implication. Also, a key means of how EU citizenship is acquired in practice is by accession to the EU – which the withdrawal process mirrors. So the more logical comparison is between the collective, not the individual, acquisition and loss of EU citizenship.  

Also, the Court is keen to point out that the consequences of the loss of EU citizenship follow from the UK’s sovereign decision to leave the EU. This is consistent with prior CJEU case law (see Wightman and Shindler, discussed here and here). It again points out (and some Remainers seem unwilling to accept this) that the process of leaving the EU is up to the national law of the Member State choosing to leave, with no approval from the EU required (the notion that the EU ‘shouldn’t have let the UK leave’, or should somehow consider various facts – still less wild allegations – about the process of leaving, is obviously unfounded). In this context, it is worth remembering that some on the Leave side were prone to misleading or false comments about the impact for Brits of leaving the EU: for instance, this infamous tweet by the current Prime Minister (‘Brexit will make no difference’).

The Court does knock on the head the attempt to rely on the previous case law on the loss of EU citizenship (Rottmann, Tjebbes and Wiener Landesregierung – see discussion here), because they all concern the loss of EU citizenship via means of loss of nationality of a Member State. In fact, those judgments reinforce, not contradict, the logic of today’s ruling – that there is an inextricable link between EU citizenship and nationality of a Member State.

Today’s judgment is the end of the assumption – strongly held by many – that EU citizenship is a status conferred upon individuals, not a status linked to a state’s membership of the European Union. There’s certainly an argument that EU citizenship should be based on the former approach, the wording of the Treaties (as the judgment confirms) points inescapably to the latter. Member States simply did not choose to create a status of EU citizenship independently from that of nationality of a Member State.

Finally, though, there are interesting nods to the post-Brexit future in the Court’s judgment. Although it does not mention the possible relevance of EU law on long-term resident non-EU citizens (on which, see hereas regards its application to Brits, and hereand hereas regards proposals for reform), it goes out of its way to mention the citizens’ rights provisions of the withdrawal agreement, which now govern the position of those EU citizens who moved to the UK, and UK citizens who moved to the EU, before the end of the transition period. In this context (and other contexts), it mentions the importance of reciprocity in EU external relations – implicitly echoing the concerns of those who thought that arguments for Brits to retain EU citizenship, like some demands made by Leave supporters, sought to ‘have their cake and eat it too’. The Court also notes that the EU institutions have great political discretion in external relations. Time will tell whether, if UK/EU relations deteriorate still further, this might come to be seen as ‘the gun in the first act’.

Photo: Garry Knight, via Wikimedia commons

 

Continue reading It’s the end – but the moment has been prepared for: the CJEU confirms that UK citizens have lost EU citizenship

Allister Round 2: a deeper dive into the Mariana Trench of UK constitutional law

 

Anurag Deb, PhD student, Queen’s University Belfast School of Law

Photo credit: Dom0803, via Wikicommons

 

Introduction

In UK constitutional law, it is a truth universally (though not empirically) acknowledged, that an issue in want of a single determination must instead yield to multiple, overlapping conclusions. So too, was the case with Allister and others v Prime Minister and others [2022] NICA 15, handed down by the Northern Ireland Court of Appeal (NICA) on 14 March 2022. Before I begin my analysis, it is important to note that the NICA has granted permission to appeal this case to the UK Supreme Court, so this is by no means the last analytical piece you will read about this case.

 

Facts

For those who remain blissfully unaware of the facts and issues surrounding Allister, you have my admiration. Briefly: Allisteris a case which essentially challenges the Protocol on Ireland/Northern Ireland to the UK-EU Withdrawal Agreement (Protocol) as a breach of (1) the Acts of Union 1800, (2) section 1(1) the Northern Ireland Act 1998 (NIA), (3) section 42 of the NIA, (4) the European Convention on Human Rights (ECHR) and (5) EU law.

Following the judgment handed down by Mr Justice Colton in the High Court, Sarah Kay did a detailed post on this blog about the facts, issues and implications of that judgment. I also offer my own modest takein the pages of the Northern Ireland Legal Quarterly, freely available without subscription.

Briefly, the claimants firstly argued that the Protocol established differential treatment between NI and GB, thereby breaching the “same footing” provisions under Article VI of the Acts of Union 1800 (which united GB and Ireland until 1920). Secondly, because the Protocol had been agreed and incorporated into UK domestic law without seeking popular consent in NI, the claimants argued this breached the NIA insofar as the Protocol altered the constitutional position of NI within the UK. Thirdly, the Protocol allows for the Stormont Assembly to have periodic votes on the application of EU laws (relating to the single market on goods only), which disapply the cross-community consent underlying major aspects of the NIA (and thus are in breach). Fourthly, the Protocol suffers from democratic deficit, because it continues to subject NI to EU law in circumstances where NI residents can no longer elect representatives to the European Parliament, in breach of Article 3 of Protocol 1 of the ECHR. Fifthly, the EU lacked the necessary powers to agree an agreement like the Protocol and thus breached its own constitutive laws.

In the High Court, as in the NICA, all 5 grounds were dismissed. The difference between the two courts, however, was how each court construed the first ground, namely a breach of the Acts of Union. Here, we begin to plumb some truly murky depths of statutory interpretation. Captain Nemo would not find freedom in these waters.

 

What happened to Article VI?

In the High Court, Colton J left the question whether Article VI (“same footing” between GB and NI) had been repealed, rendered obsolete or spent, unanswered. Instead, he focussed on the reality of what faced him: the UK Parliament had enacted the European Union (Withdrawal Agreement) Act 2020 (2020 Act), thereby making the Protocol part of domestic law. In particular, this Act had inserted section 7A into the European Union (Withdrawal) Act 2018, which made every UK statute, whenever enacted, subject to the Withdrawal Agreement (including the Protocol). Colton J merely concluded that Article VI no longer had the effect it once did in 1800, because parliamentary sovereignty dictated that the more recent statute (and thus expression of the will of Parliament) prevailed over the less recent one. This is because one sovereign Parliament cannot bind its equally sovereign successors, so a sovereign legislative body had merely acted in accordance with its own sovereignty. QED.

In the NICA, two different (and somewhat overlapping) views emerged. For the majority, the Lady Chief Justice considered that the 2020 Act had “subjugated” Article VI. In his concurrent judgment, Lord Justice McCloskey considered that Article VI had been modified in its effect. Both were explicit that Article VI had not been repealed – expressly or implicitly.

This is where the divergence of views gets tricky. Both the Act of Union and the 2020 Act are “constitutional” statutes – this much is uncontroversial. What this means was explained by Lord Justice Laws in Thoburn v Sunderland City Council (sometimes known as the Metric Martyrs case): “In my opinion a constitutional statute is one which (a) conditions the legal relationship between citizen and State in some general, overarching manner, or (b) enlarges or diminishes the scope of what we would now regard as fundamental constitutional rights.” Constitutional statutes, according to this principle, are not subject to implied repeal, but are subject either to express words of repeal or by words so clear that repeal is the “irresistible” conclusion.

Now, Thoburn had been a case between a constitutional statute and an ordinary one. Allister involved two constitutional statutes. One prevailing theory, explained by Mark Elliott, was that the constitutional status of two statutes cancel each other out, so, the more recent one can impliedly repeal the older one. Colton J did not cite this exact argument but appeared more or less to reason his judgment in a similar way.

The NICA, however, rejected any kind of repeal of Article VI, preferring the subjugation/modification paradigm. But this is even murkier. The UK Supreme Court had, in The Continuity Bill Reference, defined “modification” as follows:

“Without attempting an exhaustive definition, a protected enactment will be modified by a later enactment, even in the absence of express amendment or repeal, if it is implicitly amended, disapplied or repealed in whole or in part. That will be the position if the later enactment alters a rule laid down in the protected enactment, or is otherwise in conflict with its unqualified continuation in force as before, so that the protected enactment has to be understood as having been in substance amended, superseded, disapplied or repealed by the later one.”

Although this case dealt with the Scottish Parliament’s competence to enact legislation dealing with new powers available following Brexit, the point here is that an Act of the UK Parliament is only unmodified if it has “unqualified” continuation in force, i.e. that its effect in law is unchanged by any other statute. This is far from an uncontroversial view – a recent devolution reference which draws heavily from the Continuity Bill Reference (also dealing with the Scottish Parliament) has ignited debate among public lawyers about how precisely the Supreme Court views devolution (see this post by Mark Elliott and Nicholas Kilford). The point, however, is that the NICA’s reasoning appears to be at odds with that of the Supreme Court. If a later statute modifies the effect of a previous one, then according to the Supreme Court, the previous one can be taken to have been impliedly repealed. But this itself is not a settled question because of the different parliaments which enacted the two statutes.

 

History and logic

The Acts of Union were parallel statutes enacted by the (then) Parliaments of Great Britain and Ireland, which by operation of the same Acts, ceased to exist in favour of a Parliament of the United Kingdom of Great Britain and Ireland.

The Acts of Union were thus the statutes upon which the modern UK Parliament was (generally) built. The question is whether the modern UK Parliament has the legal ability to repeal (explicitly or implicitly) the very laws under which it came into existence. In MacCormick v Lord Advocate, the Lord President of the Court of Session (Inner House) said this of a similar question raised in respect of the Treaty and Acts of Union which united England (and Wales) and Scotland into one Kingdom of Great Britain:

“The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law … I have not found in the Union legislation any provision that the Parliament of Great Britain should be ‘absolutely sovereign’ in the sense that that Parliament should be free to alter the Treaty at will.”

MacCormick did not feature in the NICA’s judgment but remains as an uneasy reminder that the UK Parliament is not entirely immune to a legal grandfather paradox being unleashed. The problem, indeed, the main problem with the entire Allister case, is the process of reconciling the layered reasoning of the law, with the unconcerned facts of reality. This is especially true of matters involving constitutional law, which require clear, cogent and consistent interpretation in order to enable states to function at all.

 

Implications

The Protocol is not only a matter of lively debate in academic circles – it is a very real matter of social and political tension in NI. Allistercomes at a fraught time in NI politics – Executive collapse, electoral uncertainty and increasing public fatigue. No court can solve any of that.

However, I await the Supreme Court’s views on the matter with a mixture of excitement and trepidation: excitement that constitutional law (my field of research) continues to enjoy something of a renaissance beyond the pages of academic publications, and trepidation that we, like the Nautilus, are heading into a maelstrom.

 

Continue reading Allister Round 2: a deeper dive into the Mariana Trench of UK constitutional law

Brexit means Brexit for UK nationals and EU citizenship: analysis of an Advocate-General’s opinion

 

Professor Steve Peers, University of Essex

Did British citizens retain their EU citizenship after Brexit? The EU and the UK government assume not, but some Brits have begged to differ.

The issue has reached the EU courts in several ways. Three cases went directly to the EU General Court, challenging the EU Council’s decision to conclude the withdrawal agreement, on the grounds that the agreement (in the applicants’ view) wrongly removed their EU citizenship. Last August, the EU General Court rejected all these cases for lack of standing; the applicants have all appealed to the CJEU. (See my compilation of Brexit litigation for further details).

Two cases reached the CJEU via national courts sending questions about the interpretation of EU law and the validity of the decision to conclude the withdrawal agreement. This route does not raise standing problems. The first of these cases (Case C-673/20 EP) has led to an opinionof an Advocate-General of the CJEU yesterday – which argued that British nationals have lost their EU citizenship as a result of Brexit, and the decision concluding the withdrawal agreement was valid.  

Summary of the opinion

The opinion begins by quoting Article 9 TEU: “Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship” – and noting that Article 20(1) TFEU is nearly identical. It then summarises the specific issue in this case: the loss of local election voting rights of a UK citizen in France, due to her loss of the status of EU citizen (which entails such voting rights) as a consequence of Brexit. Interpreting these Articles in the context of the Treaties as a whole, the Advocate-General states that:

Article 9 TEU and Article 20(1) TFEU provide that Union citizens must be nationals of a Member State. Union citizenship is additional to, and does not replace, nationality conferred by the Member States. In that context, it is important to acknowledge that the Member States could have decided to pool their competences and to confer on the European Union the power to determine who is entitled to become a Union citizen. That explicit choice by the Member States not only renders the European Union powerless to create Union citizenship independently from nationality as conferred by the Member States, but also raises a constitutional barrier to such a power being implied under Union law. [para 22]

This is an answer to those who argue that the EU could confer EU citizenship as such on Brits, Russians or any other nationals of non-EU countries. It leads to his next point, dismissing the relevance of the previous CJEU judgments on the limits of the loss of EU citizenship which were referred to by the applicant (Rottmann, Tjebbes and Wiener Landesregierung – see discussion here) on the grounds that they all concern the loss of EU citizenship via means of loss of nationality of a Member State.

By comparison, the UK’s withdrawal from the EU took place on the basis of Article 50 TEU, which had the consequence of the UK ceasing to be a Member State. Article 50(3) TEU states explicitly that ‘the Treaties shall cease to apply’ to a State that leaves the EU when a withdrawal agreement enters into force, or ‘failing that’ two years after its notification to leave (unless that time frame is extended by mutual agreement). The opinion interprets this to mean that:

…In consequence, the United Kingdom no longer resolved, inter alia, to establish a citizenship common to that of the nationals of EU Member States or to create an ever closer union among the peoples of Europe. Since the existence of Union citizenship depends upon the acquisition and possession of the nationality of a Member State, and the United Kingdom voluntarily abandoned that status in the manner prescribed by Union law, British nationals ceased to be Union citizens. [para 28]

He then examined – and dismissed – the specific arguments made by the applicant. First, she argued that she retained her EU citizenship despite the UK leaving the EU. In his view, since the EU ‘has freely determined that acquisition of citizenship of a Member State is a condition precedent for the conferral of Union citizenship’, her argument that links to a State ground a claim to that State’s nationality fail. Equally, in his view, her argument that her links with France prevent deprivation of her EU citizenship must fail, as she could always claim French nationality (and therefore EU citizenship): “[w]ithout her possession of the nationality of a Member State, France cannot recognise EP as a Union citizen.”

Although EU citizenship, according to case law, aims to integrate EU citizens into the society of the host State, this did not mean, in the Advocate-General’s view, that the history of such integration in an individual case prevented the loss of EU citizenship:

…In addition to the objection that EP, like all other British nationals, ceased to meet the essential precondition for the enjoyment of the status and benefits of Union citizenship, namely Member State nationality, as a direct consequence of the United Kingdom’s sovereign decision to withdraw from the European Union, it may further be observed that the integration of third-country nationals into the societies of the Member States is not among the goals furthered by Union citizenship. [para 34]

A brief reference in the Rottmann opinion to the independence of EU citizenship from Member State nationality was not relevant either, as that opinion also made it clear that nationality of a Member State was a condition to have the status of EU citizen: “far from supporting the proposition advanced by EP, point 23 of the Opinion of Advocate General Poiares Maduro in Rottmann entirely undermines it” [footnote omitted].

…It describes the rationale for Union citizenship being contingent upon holding the nationality of a Member State as the Member States’ mutual commitment to construct a new form of civic and political allegiance on a European scale. By its sovereign decision to leave the European Union, the United Kingdom signalled its clear determination to repudiate that commitment. In the context of that act by a sovereign State, an individual cannot seek to rely upon his or her British nationality to assert a claim either to Union citizenship or to its benefits. [para 37]

A technical argument about the scope of the transition period in the withdrawal agreement (discussed here) failed too: the opinion concludes that only someEU law continued to apply to Member States as regards UK nationals during that period, and this did not include voting rights in local elections.

The opinion then returns to the argument that the judgments in Rottmann, Tjebbes and Wiener Landesregierung – which require that the loss of EU citizenship via the loss of Member State nationality require an individual decision subject to proportionality, legitimate expectations, and the right to be heard – apply to Brexit. Here, the Advocate-General reiterates more fully that the earlier rulings do not apply by analogy to a State withdrawing from the EU:  

…The principle of proportionality requires that a competent authority balance conflicting rights and norms before taking a decision affecting an individual. The circumstances of this case require no balancing by the deciding authority that would take account of EP’s personal circumstances. As a direct result of the sovereign decision of the United Kingdom to withdraw from the European Union, a person in EP’s position lost the right to vote and to stand as a candidate in municipal elections in France, her Member State of residence. It is that sovereign decision, not that of a Member State or any authority thereof, that caused EP to lose the benefit of those rights. [para 42]

The applicant could not compare herself to a stateless person, as she remains a national of the UK:

…She can address any issue that she may have concerning her status or rights as a British national to the United Kingdom authorities. France or the European Union are incapable of playing any role in such a dispute. [para 43]

The same applied to her argument based on legitimate expectations:

…Any breach of legitimate expectations that EP may wish to ventilate concerning her status as a Union citizen is to be addressed to the United Kingdom, which has withdrawn from the European Union, and not to either the French authorities or to the European Union. [para 44]

And also to the argument that ‘the French authorities stripped her of the right to vote and to stand as a candidate in municipal elections, thereby depriving her of the right to participate in the democratic process’:

…Any deprivation of her right to participate in the democratic process as a British national arises exclusively as a consequence of United Kingdom law. [para 45]

Nor could she rely upon the principle of non-discrimination on grounds of nationality, in Article 18 TFEU, because although that principle applied to UK citizens during the transition period in general, the specific issue of voting rights was excluded from it by the withdrawal agreement, and non-EU citizens are in a different position than EU citizens. However, it remains to Member States, if they so choose, to allow non-EU citizens to vote in local elections.

Finally, in light of his analysis, the Advocate-General answers the specific questions referred by the national court to the effect that:

-          due to the UK’s decision to leave the EU and the withdrawal agreement, UK nationals are no longer EU citizens; any legal questions arising from this are a matter for the UK, outside the CJEU’s jurisdiction;

-          various Treaty articles and the withdrawal agreement do not preserve EU citizenship rights for UK nationals, because the UK has ceased to be a Member State and ‘the exercise of rights conferred by Union law does not furnish any legal basis upon which an individual’s status as a Union citizen falls to be determined’; and

-          the decision concluding the withdrawal agreement is valid, because the loss of voting rights follows from the UK’s decision to leave the EU, considering that the EU (according to prior case law) has a wide discretion in external relations and did not exceed the margins of that discretion.

More fundamentally, as to whether the withdrawal agreement ‘infringes certain principles underlying EU identity and is disproportionate since it contains no exception to the rule that British nationals lose the rights attaching to Union citizenship’, the opinion argues:

…Since the United Kingdom’s sovereign choice to leave the European Union amounts to a rejection of the principles underlying the European Union, and the Withdrawal Agreement is an agreement between the European Union and the United Kingdom to facilitate the latter’s orderly withdrawal from the former, the European Union was in no position to insist that the United Kingdom fully adhere to any of the European Union’s founding principles. Nor could the European Union secure rights that, in any event, it was not bound to assert on behalf of persons who are nationals of a State that has left the European Union and who are therefore no longer Union citizens. Finally, since Union citizenship depends upon the possession of Member State citizenship, no response other than the exclusion of British nationals from the definition of Union citizens was possible whilst remaining within the scope of the Treaties. [para 75]

Comments

Advocate-General’s opinions are not binding on the CJEU judges, so this is not the final word on the legal issues yet. But let’s examine what the opinion would mean if the judges follow it.

The opinion is, first and foremost, a complete rejection of the argument that UK citizens retain EU citizenship after Brexit. It explicitly applies whether those UK citizens have exercised free movement rights or not; and although it is focussed on voting rights (the subject-matter of the case) there is no logical reason to limit its effect to voting rights only. So the free movement rights of EU citizenship have also been lost – after the end of the transition period. (The applicant’s technical arguments about whether the transition period exceptions applied to Member States – even if those arguments had been successful – would anyway be moot now, following the end of that period).

The Advocate-General mentions the prospect of the applicant obtaining French citizenship (therefore EU citizenship), but not all UK citizens would find that route so easy. However, this is not crucial to the main logic of his legal argument, which is simply that EU citizenship depends on holding the nationality of a Member State – and the UK is no longer a Member State.

Moreover, in the view of the Advocate-General, the responsibilityfor the UK no longer being a Member State is solely that of the UK, given that the UK took a unilateral decision to leave the EU. This is consistent with prior CJEU case law (see Wightman and Shindler, discussed hereand here). It follows implicitly that this case was not about whether Brexit itself was legally valid, since that was a matter for UK law (and that issue was not even raised by the national court). This is apparently sufficient in itself to defeat the argument relating to legitimate expectations, without needing to examine whether the EU created such expectations.

The Advocate-General does not discuss the common line of argument that ‘there is no provision explicitly detailing what happens to EU citizenship when a Member State leaves the EU’, presumably because he considers his conclusion as to the requirement of a link to the nationality of a Member State sufficient. If necessary, though, the response to that argument is simply that (as the opinion points out), Article 50 states that the Treaties cease to apply to the withdrawing Member State; and the Treaties create the concept of EU citizenship.

As for the analogy which the applicant sought to draw between Brexit and the prior CJEU judgments on the loss of EU citizenship, the opinion convincingly argues that the prior judgments confirm the link between Member State nationality and EU citizenship, not weaken it. For if EU citizenship could exist independently of holding Member State nationality, on the basis that the person concerned had once held the nationality of a Member State, then those judgments would have reached their conclusions on an entirely different basis. The whole point of the prior judgments is that the loss of Member State nationality fell within the scope of EU law because it led to the loss of EU citizenship.

The applicant’s argument turns on an assumption that EU citizenship is a status linked to individuals, not a status linked to a state’s membership of the European Union. But while there could well be an argument that EU citizenship should be based on the former approach, the wording of the Treaties (as the opinion confirms) points inescapably to the latter. Member States simply did not choose to create a status of EU citizenship independently from that of nationality of a Member State.

A further argument, not discussed by the Advocate-General, is that a comparison with the means of acquisition of EU citizenship is unhelpful to the applicant too. Brexit is a collectiveloss of EU citizenship, not an individual loss; so the better analogy is not with the case law on individual loss, but with the mechanism of collective acquisition. And the means by which nationals of the last 16 Member States to join the EU collectively obtained EU citizenship was those States’ accession to the EU on the basis of Article 49 TEU. It logically follows that the collective loss of EU citizenship follows logically from the parallel process of leaving the EU set out in Article 50.  

Photo: Garry Knight, via Wikimedia commons

Barnard & Peers: chapter 26

Continue reading Brexit means Brexit for UK nationals and EU citizenship: analysis of an Advocate-General’s opinion

Residents of everywhere? The CJEU rules on loss of immigration status due to absence from the territory

 

Professor Steve Peers, University of Essex

Immigration status is often lost due to a certain period of absence from the territory of the country which granted it. But what if that absence is briefly interrupted? The CJEU addressed that issue in a recent judgmentconcerning non-EU citizens with EU long-term resident status – which may also be relevant to those covered by EU free movement law and the Brexit withdrawal agreement.

Background

The recent judgment interpreted the EU’s long-term residence (LTR) directive, adopted back in 2003and amended in 2011to include refugees and people with subsidiary protection, which the Commission plans to propose amendments to in April. Ireland, Denmark, and the UK (when a Member State) opted out of the legislation – although the Directive is now relevant to British citizens as non-EU citizens (I previously discussed its application to UK citizens here).

After five years’ legal residence, the Directive provides that non-EU citizens can apply for long-term residence status in a Member State, subject to meeting certain conditions, which guarantees them a degree of equal treatment, a modest facilitation of the prospect of moving to another Member State (falling short of free movement law), and some protection against expulsion. The Directive exists alongside national forms of permanent residence, so not all those eligible for it will have it: some will have the purely national version.

Once obtained, how can EU long-term residence status be lost? Article 9 of the Directive provides that it is lost or withdrawn due to fraud, expulsion, or ‘in the event of absence from the territory of the Community for a period of 12 consecutive months’ (emphasis added). Member States may provide that ‘absences exceeding 12 consecutive months or for specific or exceptional reasons’ do not lead to loss or withdrawal. They may also remove the status where there is a ‘threat to public policy’ due to serious offences, falling short of the threshold for expulsion. LTR status from one Member State is also lost once it is obtained after gaining it from another Member State after residing there.

There is a second provision on absence, providing that LTR status is lost after six years’ absence from the Member State that granted it – although a Member State may provide that the status is nevertheless retained ‘for specific reasons’. (This appears to be limited to cases where the LTR status holder moved to another Member State). As regards both of the rules on absences, Member States ‘shall provide for a facilitated procedure for the re-acquisition of long-term resident status’, which ‘shall apply in particular to the cases of persons that have resided in a second Member State on grounds of pursuit of studies’. However, the conditions and procedure for re-acquiring this status ‘shall be determined by national law’.

Finally, LTR status cannot be lost solely due to the expiry of an LTR residence permit, and if the loss of LTR status does not lead to removal, ‘the Member State shall authorise the person concerned to remain in its territory if he/she fulfils the conditions provided for in its national legislation and/or if he/she does not constitute a threat to public policy or public security’.

The CJEU judgment

The recent judgment concerned a Kazakh citizen with LTR status from Austria. He applied for renewal of his permit in 2018, but the Austrian authorities turned his application down in 2019 because, for the five-year period between August 2013 and August 2018, he had only spent a few days each year within the EU. He argued that the ‘absence’ exception must be interpreted strictly, so that a return to the EU territory for only a few days within each year was sufficient to interrupt the break, and justify the continuation of his LTR status. In his view, it was not necessary to show that he was ‘physically established’ or had his ‘habitual residence’ in the territory. The national court (the Administrative Court of Vienna) was sympathetic to this interpretation, but asked the CJEU questions to confirm it.

In the Court’s view, in the absence of any reference to the national law of Member States, the concept of ‘absence’ had to be ‘regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union…taking into account the wording of that provision, its context, and the purpose of the rules of which it forms part’.

Starting with the wording of the clause, most language versions used a term ‘equivalent’ to ‘absence’. The Court noted that ‘the usual meaning of that term in everyday language’ was ‘the physical ‘non-presence’ of the long-term resident concerned in the territory’ of the EU; hence ‘any physical presence of the person concerned in that territory is capable of interrupting such an absence’. Although the German and Dutch language versions of the Directive used words which implied instead ‘staying or remaining’ on EU territory, ‘and could therefore, depending on the context, imply a more permanent presence than a physical presence of any duration’, those words could also refer to ‘a mere physical non-presence’; and otherparts of the German and Dutch language versions of Article 9 did use words ‘which correspond to the concept of ‘absence’’.

Secondly, the context of the Directive provided for the permanence of LTR status, ‘subject to Article 9’. So permanent LTR status was ‘the general rule’, and Article 9 was a ‘derogation’ which must be interpreted ‘strictly’. This ‘suggests that there should not be a broad interpretation of Article 9’, ie it is should not be interpreted to mean that ‘mere physical presence’ was insufficient to interrupt absence from the EU.

Also, the rule on acquisition of LTR status expressly ‘requires the presence of the person concerned in the relevant territory to go beyond a mere physical presence and that it be of a certain duration or have a certain stability’ – ie to ‘reside…legally and continuously for five years immediately prior to the submission of [his or her] application, subject to the periods of absence permitted under Article 4(3) of that directive.’ Details like this are lacking in the provision on loss of status, which ‘in particular’ does not say that ‘the presence of the person concerned in that territory must be of a certain duration or have a certain stability such as’ having ‘his or her habitual residence or centre of interests in that territory’. Nor are there ‘any other conditions relating to the duration or nature of that presence’, such as ‘an ‘actual and authentic link’ with respect to the same territory’, like ‘family members or assets’.

Finally, as for the objective of the Directive, the preamble stated that it aimed at integration of long-term resident non-EU citizens into the territory of the EU, by bringing their status closer to that of EU citizens and ‘establishing equal treatment with the latter in a wide range of economic and social fields’. This supported an interpretation of Article 9 to mean that those who have demonstrated they are sufficiently ‘settled’ to obtain LTR status ‘are, in principle, free, as are EU citizens, to travel and reside, also for longer periods, outside the territory of the European Union, without that thereby entailing the loss of their long-term resident status’, subject to not being absent for 12 consecutive months.

Also, the objective of legal certainty – which the preamble refers to as regards procedural rights – must also apply to the issue of loss of the status (referring to the Commission’s proposal, which stated that the sole grounds of losing LTR status should be listed in the proposal). The Court’s interpretation best met the objective of legal certainty, as the ‘maintenance of’ LTR status was ‘dependent on a clear, precise and predictable criterion relating to a simple objective event’.

Finally, the purpose of the absence rule was to prevent non-EU citizens from keeping LTR status where it no longer served any purpose in achieving the objective of integration.  It referred to the purpose of the parallel clause on the loss of permanent residence status under EU free movement law, ie justification for that loss because ‘the link with the host Member State is loosened’.  Although the free movement Directive and the long-term residence Directive

…differ from one another in terms of their subject matter and objectives, the fact remains that, as the Advocate General also pointed out, in essence, in points 40 to 43 of his Opinion, the provisions of those directives may lend themselves to a comparative analysis and, where appropriate, be interpreted in a similar way, which is justified, in particular in the case of [the provisions on loss due to absence], which are based on the same logic. [para 43]

It followed that the link is loosened only after an absence for 12 consecutive months; and to interrupt that absence, ‘it is sufficient for the long-term national concerned to be present…in the territory of the European Union, even if such presence does not exceed a few days’. This must, however, ‘be distinguished from the situation where there is evidence that such a resident has committed a misuse of rights’, although there was no evidence of such a misuse in this case.

Comments

The Court’s reasoning in this judgment is largely convincing. Its approach to interpreting the wording of the law is consistent with prior judgments, as regards a uniform interpretation under EU law in the absence of a reference to national law, and siding with the majority of language versions – and furthermore, as the Court points out, the German and Dutch language versions do not unambiguously suggest the opposite interpretation either. As for the context of the law, both the ‘interpret the rule widely/interpret derogations strictly’ approach and the a contrario approach (where the drafters wanted to specify there were requirements beyond mere presence on the territory, they expressly did so) are consistent with the Court’s usual canons of interpretation.

On the other hand, its analysis as regards the objective of the Directive is less persuasive. It starts out by referring to the objective of integration, which may point to the opposite interpretation to that which the Court reaches: can it easily be argued that a non-EU citizen who spends only a few days a year on EU territory for a five-year period is still integrated into a Member State’s territory? The Court narrowly avoids painting itself into this corner by framing integration as a form of equality with Member States’ citizens, who can come and go as they please without losing citizenship. But in fact some Member States do withdraw their nationality – and therefore EU citizenship – due to absence, in combination with other factors, and the Court has even ruledon that issue. The comparison with EU free movement law isn’t too convincing, because the Court has not yet ruled on the interruption of absence point in that context. And while the legal certainty point is convincing as far as it goes, it is undercut both by the Court’s lack of clarity on what a ‘few days’ interruption of absence means exactly, and by its creation of a ‘misuse of rights’ exception, which it does not define further except to assert that the exception does not seem to apply in this case.

Are these two points the same – ie a yearly dash through Schiphol airport in transit between Heathrow and New York does not count as interruption of absence? If so, the rule must be further explained. Or are they, as it appears, two different rules? If so, those two rules need to be explained further.

As for the implications of the judgment, it is first and foremost surely logical that this judgment applies to the second method of losing LTR status due to absence, ie by six years’ absence from the Member State that granted the status. It would be very odd to interpret an essentially identical concept appearing in the same Article of the same Directive differently. The judgment also strongly implies that the grounds of loss of status are exhaustive, and that the other grounds for loss of status should be interpreted narrowly. (However, note that in a previous judgmentthe Court interpreted the ‘fraud’ ground for loss of status broadly, ie it was lost even when the non-EU citizen concerned had not personally committed that fraud). The judgment is not relevant by analogy to periods of absence while accruing the initial five years’ legal residence to obtain an LTR permit, because there is a more specific rule applicable there.

Going outside the LTR Directive, the Court’s judgment explicitly suggests that the rules on absence in free movement law must be interpreted the same way – ie ‘Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.’ Due to its close links with free movement law, it is arguable that the absence clause in the Brexit withdrawal agreement should also be interpreted this way (‘Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years.’)

 

Barnard & Peers: chapter 26

Photo credit: Uri Baruchin, via wikicommons

 

Continue reading Residents of everywhere? The CJEU rules on loss of immigration status due to absence from the territory