Written evidence from Liverpool Law School, University of Liverpool (HRB0033)

Contributors:

EU Law @ Liverpool (Prof Michael Dougan; Dr Stephanie Reynolds) https://www.liverpool.ac.uk/law/research/liverpool-european-law/

Liverpool Economic Governance Unit (Dr Gregory Messenger; Dr Mavluda Sattorova; Mr Jure Zrilic)

https://www.liverpool.ac.uk/law/research/liverpool-economic-governance-unit/

International Law and Human Rights Unit (Dr Anne Neylon; Dr Vassilis Tzsevelekos)

https://www.liverpool.ac.uk/law/research/international-law-and-human-rights-unit/

Contact: Stephanie Reynolds – s.reynolds@liverpool.ac.uk

Our response to this call for evidence focuses on the three issues highlighted as being of particular interest to the Joint Committee:

1)     The human rights implications of UK withdrawal from the EU in the context of respect for the right to private and family life.

This section highlights the need for some form of transitional period to cater for the very different residence rights – and linked family reunification framework – operating as a matter of EU law, as compared with national immigration law.

2)     The human rights implications in the context of international trade.

This section emphasises that, while human rights are increasingly incorporated into trade agreements, they nevertheless raise political, legal and practical issues both during negotiation and in terms of enforcement. In the context of investment, there is continuing tension as regards the use of investment treaties to challenge public policy decisions by States, including those incorporating human rights protection. 

3)     The implications of withdrawal for other human rights protected by EU law.

This section focuses on the separate but interlinked systems for the enforcement of fundamental rights currently operating in the UK, and considers the impact of the absence of EU mechanisms post-withdrawal.

1)     Privacy and family life

Potential issues arising in the context of the interrelationship between residence rights and the right to family and private life should be explored both from the perspective of non-national EU citizens residing in the UK, and British nationals living in other EU Member States.

Residence Rights and the Right to Respect for Private and Family Life: non-national EU citizens living in the UK

The UK will face a unique set of challenges in the context of the private and family life rights of EU citizens, resident in the UK, as part of UK exit from the Union. This is the result of the particular rights of entry and residence enjoyed by EU citizens and their family members, as a matter of Union law, during UK membership of the EU. 

• The current legal framework: At present, EU law generally offers more extensive family reunification options to EU citizens than would otherwise be available to them under the UK’s national immigration law. Family members of Union citizens – whether third country nationals or themselves EU citizens - are able to join them in the UK, provided that the Union citizen is working, self-employed, or has the sufficient resources and comprehensive sickness cover not to become a burden on the UK. (Art 7 Directive 2004/38). The levels of protection from deportation available to EU citizen criminal offenders as a matter of Union law also offers indirect protection to family life. EU citizens may only be removed for reasons of public policy, public health, or public security. After five years’ continuous, legal residence, EU citizens can only be deported on ‘serious grounds of public policy or public security’. Following ten years’ legal residence, EU citizens may only be removed on ‘imperative grounds of public security’. At every level, individuals must represent a genuine, present and sufficiently serious threat to a fundamental interest of society and their deportation must be proportionate to this threat. Regard must be had, in particular, to the EU citizen’s length of residence in the UK, her/his age, state of health, family situation, and social and cultural integration. Links with the country of origin must also be considered (Arts 27 and 28 Directive 2004/38). 

Residence rights must also be conferred on the third country national family members of British nationals where not to do so would interfere with their ability to participate in single market activity, such as cross-border service provision (Art 56 TFEU, Case C-60/00 Carpenter ECLI:EU:C:2002:434).

Children who have commenced educational studies in the UK, as a result of an EU citizen parent’s employment in the UK, must be able to complete their education. This means that their primary caregiver must also retain residence rights in the UK, even if the primary caregiver is a third country national and does not have sufficient resources, and even if the EU citizen parent has ceased work and left the UK (Art 10 Reg No 492/2011, Case C-310/08 Ibrahim ECLI:EU:C:2010:80 and Case C-480/08 Teixeira ECLI:EU:C:2010:83)

The UK is also required to confer residence rights and the right to work on the third country national parent of British citizen children where not to do so would deprive the child of ‘the genuine enjoyment of the substance of the rights associated with their Union citizenship’. This is generally interpreted as covering a situation where refusal to bestow residence rights upon the third country national parent would result in the child having to leave the territory of the Union (Arts 20 and 21 TFEU and Case C-34/09 Ruiz Zambrano ECLI:EU:C:2011:124). In addition, the third country national primary carer of a non-national Union citizen child living in the UK must be afforded residence rights, where the family has sufficient resources and comprehensive sickness cover not to become a burden on the UK social assistance system (Arts 20 and 21 TFEU and Case C-200/02 Chen ECLI:EU:C:2004:629).

• The potential effects of alternatives to EU membership on family rights: The impact of UK withdrawal from the EU on the ongoing enjoyment of family life by Union citizens living in the UK will depend on the future relationship between the UK and the Union. For instance, if the UK chooses to retain access to the single market – and therefore the free movement of people across EEA/EU borders continues – then the residence rights of family members will be largely unaffected. Should an EEA or similar model be selected, the only notable difference will be the loss of residence rights for family members that are drawn directly from the Treaty provisions on EU citizenship (see e.g. Ruiz Zambrano, outlined above). However, legal frameworks outside EU law would fill some gaps. It has already been established, by the UK Supreme Court, in ZH (Tanzania) [2011] UKSC 4 that decisions relating to the removal of the third country national parent of British children must take into account the best interests of the child as a primary consideration, where removal would result in the child having to leave UK territory. Preservation of the child’s national identity must be taken into account, as well as the strength of the child’s relationships with other family members remaining in the UK. This decision was rooted in the UK’s obligations under the United Nations Declaration on the Rights of the Child and Article 8 ECHR. Since these rules operate outside of the EU legal framework, they are relevant to the UK whether or not it is a member of the EU and whether or not it is a member of the EEA.

Should the UK not opt for continued access to the single market – and free movement of persons – then the new legal framework it introduces relating to the residence rights of UK-resident EU citizens must still meet the UK’s separate obligations under Art.8 ECHR. This has two repercussions: 1) should the UK offer privileged status to EU citizens already present in the UK under its national immigration framework, the derived residence rights of any other EU or third country national family members, currently conferred by EU law, must also be considered; 2) should the UK not make special provision for already resident Union citizens, the UK will, nevertheless be required to respect the private and family relationships established between UK nationals and Union citizens during the latters’ time in the UK, and bestow residence rights where necessary, as a result of its Art 8 ECHR obligations. Not only will this be a quantitatively challenging task, in light of the number of EU citizens living in the UK and their opportunities to form and develop genuine private and family lives as resident EU citizens, but also a qualitative one, since for several decades, Union citizens have resided in the UK, and developed private and family lives here, outside of the more restrictive requirements of UK immigration law.

Under the Art 8 ECHR legal framework (see Razgar [2004] UKHL 27), public authorities must consider:

1)     Whether a refusal of entry or removal will interfere with the applicant’s right to respect for private and family life in a manner that triggers Article 8 ECHR.

The European Court of Human Rights considers a ‘lawful and genuine marriage’ to amount to ‘family life’. In the absence of exceptional circumstances, a parent-child relationship automatically gives rise to family life. Art 8 ECHR also does not merely encompass family life, but also ‘private life’ including, the ‘totality of social ties between settled migrants and the community in which they are living’ (Üner v Netherlands [2006] ECHR 873). Though much of the Art 8 ECHR case-law relates to the deportation of criminal offenders, existing judgments make clear that the social ties developed by Union citizens while living and working in the UK will have to be a relevant consideration when determining their residence rights post-exit.  

-          Once a private or family life is established, a prima facie breach of Article 8 ECHR will almost always be triggered by the removal of a family member (DM (Zambia) v SSHD [2009] EWCA Civ 474), even if Art 8 ECHR does not create an automatic right not to be expelled. Special regard must be had in relation to individuals who have spent most, or all, of their childhood in the UK (Üner v Netherlands [2006] ECHR 873) and this will clearly have significance in the context of Union citizens, many of whom may have been born here.

2)     Whether the interference can be justified.

-          Interferences must be in accordance with the law. Since this includes the requirement that the law is clear and precise (Silver v UK (1983) 5 EHRR 347), the process of UK withdrawal will have to achieve clarity on the extent to which it will affect the family rights of UK and EU citizens. 

-          The interference must be necessary in a democratic society in the interests of national security, public safety, the economic well-being of the country, for the prevention of crime or disorder, or the protection of health, morals or the rights and freedoms of others (Art 8(2) ECHR). Given the breath of this provision, a legitimate aim will be fairly easily established but is nevertheless central to the subsequent question of proportionality.

-          The interference with Article 8 ECHR rights must be a proportionate response in light of the legitimate aim pursued (ZH (Tanzania)). This largely hinges on whether family life can reasonably be expected to be enjoyed elsewhere, and achieving a balance between the interests of society and the individual (Huang and Kashmiri [2007] UKHL 11). Nevertheless, decisions must be made on an individual basis and ‘in light of all of the material facts’ (EB (Kosovo) [2008] UKHL 41). Factors taken into consideration include: whether the rest of the family can speak the language of the country to which the applicant, access to employment, health and educational needs, and the impact on existing family ties in the UK.  Where the applicant is married to a British national, ‘[i]t cannot be permissible to give less than detailed and anxious consideration to the situation of a British citizen who has lived here all his life before it is held reasonable and proportionate to expect him to emigrate to a foreign country in order to keep his marriage intact’ (AB (Jamaica) [2007] EWCA Civ 1302). Similarly, ‘it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child’ (EB (Kosovo). However, it has also been identified, in the same case that, ‘cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires’.

Although the deportation of EU citizen criminal offenders may fall within national law post-exit, the family and private ties forged during their time in the UK as EU citizens will still have to be taken into consideration during deportation decisions. Indeed, the ECtHR in Boultif v Switzerland [2001] ECHR 497 required that factors, similar to those operating under EU law, be taken into account where a deportation order would affect family life. These include, amongst others, the nature and seriousness of the offence, the length of time spent by the applicant in the host country, the duration of marriage, the presence of children, the difficulties likely to be faced by family members if they move abroad, and the nationality of family members.

• Particular challenges for the private and family life of Union citizens raised by UK withdrawal: As a contracting party to the ECHR, UK immigration law must already comply with the UK’s obligations under Art 8 ECHR, though there have, of course, been numerous legal challenges to both immigration decisions and immigration rules based on Art 8 ECHR (see e.g. in relation to the sponsors’ minimum earnings threshold MM v SSHD (2014) EWCA Civ 985). Nevertheless, UK exit from the Union raises specific questions in this regard, arising from the fact that those falling within the Union legal framework have not previously had to meet some of the more restrictive parts of UK immigration law. For instance, relationships between British nationals and (other) EU citizens, within the UK, have not previously been affected by the minimum gross annual income requirement for immigration sponsorship, introduced following the Family Migration Consultation 2011, since EU citizens enjoy independent residence rights under EU law. Should the UK opt to remove these residence rights, the potential application of similar minimum income rules, for those wishing to remain in the UK with their British or settled spouses, is highly likely to trigger Art 8 ECHR issues, given that private and family ties will have been forged before the imposition of any such requirement. Though the UK courts, when applying the Art 8 ECHR legal framework, take the precariousness of an individual’s immigration status into account when assessing the proportionality of a removal decision, the immigration status of EU citizens after UK exit should not be treated in the same way as these types of immigration cases. Family ties will have been developed when EU citizens were residing legally in the UK, and this continues to be the case for those EU citizens arriving, legally and as a matter of EU law, after the outcome of the UK referendum on membership. It would appear that, at the very least, a transitional period would be needed to manage movement between legal frameworks.

The minimum annual income requirement has already been identified as having a disproportionate impact on the Article 8 ECHR rights of low-paid and young workers, even if, broadly speaking, a minimum income requirement to meet basic subsistence costs is permitted by the ECtHR (Konstatinov v Netherlands). Should the UK choose to grant continued residence rights to EU citizens already resident in the UK but impose a similar earnings threshold for their family members, this disproportionate impact could be felt by Union citizens in particular. Union law grants residence and family reunification rights to Union citizens whose work is ‘genuine and effective’ or who have ‘sufficient resources’, and therefore includes low-paid workers who would be unlikely to reach the national minimum income requirement. For the same reasons, the recent extension of the spousal probationary period within national immigration law, and consequent restrictions on access to means-tested benefits – is also likely to have a disproportionate impact on EU families should this rule be applied in the future. Given that family ties will already have been developed, Article 8 ECHR issues are foreseeable. Relatedly, application of the NHS ‘health surcharge’ to EU citizens post-exit is likely to have a disproportionate impact on the private and family life of low-paid workers.

The security of residence rights for EU citizens, generally speaking, has also resulted in differing attitudes to national citizenship. For instance, British citizens, having exercised their free movement rights, might have children with the nationality of a different EU member state, though the family now lives in the UK. A large number of Union citizens will have children in the UK with British nationality, though they not have applied for citizenship themselves, even after many years in the UK. A large number of Union citizens will also have had children in the UK but have opted to give their children the nationality of their Member State of origin, though their children have always lived here. If the security of residence for Union citizens is altered as a result of UK exit from the EU, the historical development of diverse attitudes towards nationality will have an impact on the residence and, therefore, the family rights, of Union citizens and must be considered.

Finally, the EU legal framework has developed specific rules in the context of cross-border family law and the reconciliation of work and family life. The potential implications of withdrawal in these areas are discussed in a separate submission by the Liverpool Law School’s European Children’s Rights Unit. 

Residence Rights and the Right to Respect for Private and Family Life: UK citizens living in an EU Member State

• Article 8 ECHR -UK citizens living in EU Member States are afforded the same baseline protection of private and family rights under the Article 8 ECHR that were outlined in the previous section.

• Long-Term Residents Directive - Upon becoming third country nationals, unless more generous instruments are created as part of exit negotiations, relevant UK nationals will fall within the EU’s Long-Term Residents Directive (Directive 2003/109). This grants long-term resident status to third country nationals who have resided legally and continuously within an EU Member State for five years, and so provides a means for (some) UK nationals to maintain family ties. However, applicants must provide evidence of stable and regular resources for themselves and dependent family members, without recourse to social assistance schemes, and meet certain integration conditions. Accordingly, this form of protection is less likely to be available to UK residents who have exercised their free movement rights via lower paid professions. Moreover, while long-term residence status, once granted, creates equal treatment rights in relation to social assistance and protection, this can be restricted to ‘core benefits’. This might also have an impact, in practice, on family life. 

• Returning British citizens and their family members – should British nationals lose their residence rights in other Member States as a result of UK withdrawal from the EU and return to the UK, the UK will also need to consider the family ties forged between those British nationals and EU citizens or third country nationals whilst in other Member States, which are now at risk of being severed as a result of UK exit. Under current EU law, UK citizens are able to return with third country national or EU citizen family members, as part of the exercise of their free movement rights, without having to meet the requirements of UK immigration law (Case C-370/90 Singh ECLI:EU:C:1992:296). The UK will need to consider whether to bring this exception within the national legal framework, in order to respect Article 8 ECHR rights, at least during a transitional period when the impact of UK withdrawal on residence and family life is still being determined.

The impact of limitations on residence rights on other human rights

UK withdrawal from the EU is also likely to raise concerns about the right to property. Many non-national EU citizens will have acquired property during their time in the UK, while British citizens will also have acquired property in other EU Member States. If residence rights are restricted, and depending on the extent of such limitations, this could simultaneously cause prima facie interferences with access to immovable property. Similar issues arise should the coordination of pensions across Member States be lost, in the UK context as a result of exit, for British nationals who have previously worked in other Member States.

2) International Trade   

Human rights considerations are factored into the drafting of trade agreements in two key ways: first, to promote human rights abroad through conditioning access to the domestic market on compliance with human rights obligations; and second, to ensure that commitments to liberalise trade do not limit the freedom of the state in pursuing its own human rights obligations.

On the first point, trade agreements can offer trade concessions and preferential access as ‘carrots’ to encourage human rights compliance and also provide grounds to suspend trade concessions or access, or other forms of cooperation as ‘sticks’ to dissuade human rights violations. The EU approach when concluding free trade agreements with developing states has been to include the observance of fundamental rights and the rule of law as ‘essential elements’ of the agreement itself, which subsequently allow the use of ‘appropriate measures’ (i.e. the withdrawal of cooperation, cancellation of meetings, or suspension of trade concessions) where not met. On paper such provisions give the EU (and if the UK were to draft agreements along these lines), considerable scope to enforce human rights obligations within some developing states.

There are limitations with continuing EU policy on this front. In practice, the suspension of concessions described here have been rare and, where exercised, of questionable effect (most notably in the cases of Myanmar and Belarus). More commonly, meetings are cancelled and technical programmes suspended rather than the introduction of any trade restrictions. Raising such issues with a number of trading partners that the UK may wish to conclude agreements with could also create problems. Some, such as Australia and India (the EU has discovered in its negotiations), consider the conditioning of trade access on human rights protection as interference in internal affairs and/or an attempt to increasing labour costs abroad and thus reduce competitiveness. Should it follow the EU model, the UK would need to be willing to enforce such provisions, and in a manner which is seen as even-handed. Political and economic considerations may make such a task difficult. An alternative would be to limit the number of rights identified in such agreements but introduce a more effective mechanism for ensuring ‘follow-through’ along the lines of trade defence investigations currently operating at the EU level.

The second element of human rights’ inclusion in trade agreements is the risk that in pursuing human rights obligations, a state may be subject to a claim on the basis of violating trade obligations. For example, where a ban is introduced, on human rights grounds, for instance in relation to goods manufactured by child labour, absent a specific exception under the agreement, the state would need to defend itself, in relation to its trade obligations, on the basis of alternative grounds (most likely, protecting public morals, for which specific exceptions are customarily included). Even where a specific human rights exception were included, it would be subject to necessity and proportionality tests of one form or another (necessary limitations in most exceptions clauses to avoid misuse). Such concerns have been raised in relation to trade obligations but they are especially valent in investment law. In a separate submission, the Liverpool Law School’s European Children’s Rights Unit details the potential consequences of UK withdrawal from the Union, and the content of future trade agreements, on the protection of children from cross-border sale and in relation to the marketing of harmful products to children. 

Contemporary trade agreements also frequently include an investment chapter stipulating the commitments of contracting state parties' to protect and promote foreign investment. Such chapters are often modelled on bilateral investment treaties. These are known to provide foreign investors with extensive substantive and procedural guarantees, such as the protection from an uncompensated state interference, which may cause a substantial diminution on the part of the investor. While these rights can support states’ compliance with human rights obligations through, for example, securing due process guarantees for investors within courts, and protection of property rights, they can run counter to the pursuit of rights programmes. Another notable legal guarantee investors enjoy under investment chapters of free trade agreements is access to international investment arbitration directly against the host state. In practice, such provisions have enabled investors to claim compensation for the negative economic consequences of certain public policy measures. The foremost examples include arbitrations instigated by Philip Morris against Australia, challenging a public health regulation (a new law on plain tobacco packaging) and by a Swedish energy corporation Vattenfall disputing Germany's law on the phase out of nuclear energy. Implications of investor-state arbitration for human rights have become particularly prominent following investment disputes brought against states by foreign investors in the water and sewage service sector. These disputes highlighted the fact that regulatory efforts by states to protect the right to water may clash with their investment protection obligations. International investment treaties and investment chapters in FTAs have been criticised for their one sided character: whilst enabling investors to challenge a broad array of regulatory measures by host states, including human rights measures, international investment protection instruments presently do not contain legal mechanisms to hold foreign investors accountable for human rights violations. Whilst some new generation treaties seek to address this imbalance by inserting comprehensive exceptions clauses, the existing regime is still characterised by a lack of explicit provisions that would enable states to safeguard human rights whilst complying with their investment protection obligations.

3)     Other human rights protected by EU Law

At present, fundamental rights in England and Wales are protected through 3 distinct albeit inter-related systems: under the common law; under the ECHR as incorporated by the HRA 1998; and under EU law as regards those situations governed by the Treaties.  Each system has its own characteristics and (from the perspective of the individual claimant) its own relative strengths and limitations. 

The basic effect of withdrawal from the EU will be to remove one of those systems of fundamental rights protection from the domestic legal order, leaving the remaining two systems to expand and fully occupy the relevant legal territory:

• The scope of the EU system of fundamental rights protection is relatively limited, as regards the actions of national authorities, since it applies only to conduct falling within the scope of Union law.  After withdrawal, all the sorts of situations and relationships which previously fell within the scope of Union law will instead come to be governed by the common law and HRA 1998 alone. 

• When it comes to the content of the EU system of fundamental rights protection, it is in some respects more ambitious than the common law or HRA 1998: the range of rights recognised under the EU Charter of Fundamental Rights (CFR) is broader than ordinary domestic law or the ECHR; the standards of protection can be higher under EU law, which treats the ECHR as only a minimum floor of rights.  However, in other respects, the content of the EU system of fundamental rights can prove limited: for example, relevant provisions of the CFR must still fulfil the criteria to have direct effect before they are capable of providing autonomous grounds of judicial review within the national legal system; the CFR itself draws a distinction between the justiciability of provisions creating rights and those creating mere principles; and the CFR can sometimes act as a ceiling on fundamental rights protection, where national law might otherwise seek to offer higher standards.  After withdrawal, such variations in the content of fundamental rights protection as regards situations previously falling within the scope of Union law will again be replaced by the dual system of common law plus HRA 1998.

• Perhaps the most important difference between the common law and HRA 1998 systems (on the one hand) and the EU system (on the other hand) concerns the regime for judicial enforcement: for example, the principle of primacy entitles the courts to set aside statutory provisions which conflict with EU fundamental rights standards (in contrast to either the common law or HRA 1998); the principles of effective judicial protection enable beneficiaries of EU fundamental rights to claim extensive safeguards as regards national remedies and procedural rules (which would not ordinarily be available in cases falling outside the scope of Union law).  After withdrawal, such special enforcement techniques as regards situations previously falling within the scope of Union law will also be replaced by the ordinary protections provided under the common law and HRA 1998.

However, it may be too simplistic to assume that withdrawal from the EU will eliminate entirely the legal heritage bestowed by 40 years of co-evolution between the UK and EU legal orders, particularly in the field of fundamental rights protection.  How far might the courts seek to preserve some of the key lessons they have learned from the more expansive content and more potent enforceability of EU law, when it comes to the future interpretation of the common law and / or HRA 1998?  And just as importantly: how far might the courts seek to preserve some of the legal methodologies they have grown familiar with through the influence of EU law, for example, when it comes to teleological reasoning and more creative / interventionist approaches to statutory interpretation?  More fundamentally, just as membership of the EU inevitably influenced the nature and development of the constitutional inter-relationships between legislature, executive and judiciary, so too withdrawal from the EU will surely have equally important implications for the relative powers and responsibilities of Parliament, the Government and the superior courts – with inevitable, albeit as yet unforeseeable, consequences for the manner in which the UK legal system recognises and protects fundamental rights. 

October 2016

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