The government’s unwillingness to guarantee the status of EU citizens living in the UK following the Brexit vote may be violating the European Convention on Human Rights, argues Virginia Mantouvalou. (And regardless of what misleading Leave leaflets claimed, UK obligations under the Convention were not being decided by the referendum.)
Days after the Brexit vote, Theresa May stated that she would not guarantee the rights of EU citizens in the UK. Her statements were supported by Philip Hammond, then the Foreign Secretary, and repeated in Parliament by James Brokenshire, the junior Home Office Minister. Mr Brokenshire was prepared to be slightly more reassuring, but only went so far as to say that there will be ‘no immediate change’ in the legal status of EU citizens in the UK. Many condemned this position as morally repulsive and politically problematic.
The citizens in question are the 2.9 million EU nationals living in the UK – 2.15 million of whom are currently in work – who arrived in the country over the years, exercising their rights under free movement. They arrived lawfully, with a legitimate expectation that they could be employed, form friendships and other social relations, build families and plan their lives in the country, without the fear created by the present political climate. It is therefore puzzling how a mere 52 per cent of those who voted could repeal these rights.
In EU law, deportation of EU citizens is only permitted in extreme situations, for instance when someone poses a grave threat to national security. But the government do not refer to these existing EU law exceptions: the above lead one to infer that citizens could be deported solely based on their nationality. So the statements made so far and (even more so) any decision to deport EU citizens merely because the government is not satisfied with the outcome of the Brexit negotiations, may breach European human rights law, as provided under the European Convention on Human Rights (ECHR).
And although Leave leaflets conflated the EU with the ECHR during the campaign, the referendum had nothing to do with the UK’s membership to the Council of Europe – a distinct supranational organization from EU institutions. So even if the UK does leave the EU, it will still be bound by European human rights law as embodied in the ECHR, incorporated in English law through the Human Rights Act.
Treating EU nationals as bargaining chips may be in breach of the Convention on two grounds. First, the great degree of uncertainty and anxiety created by these statements upsets legitimate expectations and leads to a sudden inability to plan one’s immediate future – with possible devastating implications for personal, professional and social relations. Second, the significant implications of any future deportations may violate Article 8 of the ECHR: the right to respect for private and family life.
On the first point, the protection of private life is not limited to activities performed in one’s own actual home but may protect a right to a specific way of life. In Chapman v UK (2001) the majority of the Court ruled that the eviction of the Roma applicants from their land interfered with Article 8, but on balance did not violate it. It was influenced in this by the fact that the applicants initially established their homes unlawfully: ‘If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move’ (Chapman, para 102). The principle can clearly apply to EU citizens who have established their homes and lives lawfully in the UK.
The effects of uncertainty on professional relations can also bring EU citizens’ claims within the scope of Article 8. In the landmark Niemietz v Germany (1992) the Court explained that private life is a broad concept: ‘[r]espect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings’, and in Sidabras and Dziautas (2004) it ruled that work is a central element of a person’s private life and can fall within the ambit of Article 8 (see also IB v Greece, 2013).
Examples where the Court may be particularly willing to protect individuals whose private life is affected by the present situations may include, for instance, those of parents who cannot plan their family lives and the education of their children. That the negotiations on Brexit will last at least two years may also have a weighty role to play in any test of proportionality employed by the Court. All these make it very unfortunate that the government has been so unwilling to provide firm reassurance to people that their legal status is secure.
On the second point of deportation, there is direct authority on the capacity to deport and its impact on Article 8 rights. If removal of a person results in his or her separation from close family members, it may lead to a breach of Article 8 (Al-Nashif v Bulgaria, 2002). Particularly when there are children involved, the best interests of the child have to be taken into account (ZH (Tanzania) v Secretary of State for the Home Department, UKSC 2011). Moreover, removal from a country may also lead to an interference with Article 8 if those removed ‘had developed, uninterruptedly since birth the network of personal, social, and economic relations that make up the private life of every human being’ (Slivenko v Latvia, 2003, para 96). The fact that all EU citizens in the UK settled lawfully in the country makes their case even stronger.
Theresa May is no friend to the ECHR. Only a few months before the referendum, she declared that she wanted the UK to withdraw from it. Some of Mrs May’s reactions to the Convention appear to be attributable to misunderstandings of the UK’s human rights obligations. Her claim that someone avoided deportation because he had a pet cat, for instance, has been shown to be unsubstantiated. Courts have never stopped a deportation only because someone is attached to their pet. In any case, Theresa May has recently guaranteed not to seek to take the country out of the Convention. It is to be hoped that both the Prime Minister and the rest of her government will make their best efforts to comply with the country’s remaining international and European legal obligations.
Note: a version of this was originally published on the UK Constitutional Law blog.
Virginia Mantouvalou is Reader in Human Rights and Labour Law and Co-Director of the UCL Institute for Human Rights. She is the editor of The Right to Work: Legal and Philosophical Perspectives and co-author of Debating Social Rights (with Conor Gearty).
Theresa May hasn’t “guaranteed not to seek to take the country out of the Convention. ” and indeed the link doesn’t say she has, so it’s rather naughty to assert that it does. She has accepted that Parliament wouldn’t wear it. Sensible interpretation given her previous hostility to it is that she sees this as business for after a successful general election. I think it would be unwise therefore to rely on it.