The use of EU Citizens as bargaining chips may be in violation of European human rights law

Leaving the EU will not exempt the UK from its responsibilities under the European Convention on Human Rights. Virginia Mantouvalou illustrates how the refusal of Theresa May and others to guarantee the rights of EU citizens following the vote in favour of Brexit could be in violation of European law, and writes that although the new Prime Minister has been critical of the EHCR in the past she must take into account the country’s international and European legal obligations going forward.

Credit: Chaim Gabriel Waibel CC BY-NC-ND 2.0

A few days after the referendum on EU membership of the European Union, 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, who said that it would be ‘unwise’ or ‘absurd’ to guarantee rights of EU citizens to stay in the UK before negotiating with other Member States, and were also 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. In this piece I argue that the stance of the UK Government on the status of EU citizens in the UK may violate the European Convention on Human Rights (ECHR). European human rights law does not permit the treatment of people as bargaining chips.

It should be made clear from the outset that even though the Leave campaign (whether intentionally or not) confused the EU with the ECHR in its official leaflets, the referendum had nothing to do with UK membership to the Council of Europe, which is a distinct supranational organization from the EU. If the UK leaves 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. The Convention was not at stake in the referendum.

There are at present 2.9 million EU citizens from other EU Member States in the UK, with 2.15 million in work. These EU citizens arrived in the country exercising their citizenship rights under EU law that guarantees free movement. The UK Government has been a signatory of these free movement rights, and it is puzzling if a mere 52% of those who voted can repeal these rights, which have constitutional aspects. In any case, EU citizens did not enter the country unlawfully nor did they overstay any visa, for the simple reason that they did not need a visa to enter or work in the UK. 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.

In EU law, deportation of EU citizens is only permitted in extreme situations, when someone poses a grave threat to national security, for instance. But Theresa May and other Tory MPs do not refer to these existing EU law exceptions. To make sense of the above statements that the legal status of EU citizens who are already in the country cannot be guaranteed, we have to presume that the plan is to deport people who do not pose a threat to national security. Both these statements and (even more so) any decision to deport EU citizens if the Government is not satisfied with the outcome of the negotiations with the 27 Member States of the EU, may breach European human rights law.

First, the great degree of uncertainty and anxiety created by these statements that upsets legitimate expectations and leads to a sudden inability to plan one’s life for months and years to come, with possible devastating implications for personal, professional and social relations, and second, the significant implications of any future deportations may violate the right to private and family life of EU citizens under article 8 of the ECHR.

On the first point, the protection of private life in the ECHR is not limited to activities performed in one’s own home. That the right to private life may protect a right to a specific way of life, for instance, is an established principle in the case law, which emerged in a line of cases on Roma rights. In Chapman v UK (2001) the majority of the Court ruled that the eviction of the 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’, explained the majority (Chapman, para 102). The principle of Chapman can clearly apply to EU citizens who have developed a way of life, and established their homes and lives lawfully in the UK. The effects of uncertainty on professional relations can also bring EU citizens’ claims in 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 involving parents who cannot plan their family lives and education of their children. That the negotiations on Brexit may last at least two years may also have a weighty role to play in any test of proportionality employed by the Court. It is very unfortunate that the Government has been so unwilling to provide firm reassurance to people that their legal status in the UK is secure.

On the second point, there is of course direct authority on the capacity to deport and article 8 of the ECHR. 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 her 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 his or her pet. In any case, Theresa May guaranteed a few days ago that she would not seek to take the country out of the Convention. It is to be hoped that both Mrs May and the rest of the UK Government will make their best efforts to comply with the country’s remaining international and European legal obligations.

This article originally appeared on the UK Constitutional Law Association blog and is reposted with the author’s permission. It represents the views of the author and not those of Democratic Audit or the LSE. Please read our comments policy before posting.

Virginia Mantouvalou is the Reader in Human Rights and Labour Law and Co-Director of the Institute for Human Rights, University College London.