A Brexit not involving a clean break from the jurisdiction of the European Court would be a Brexit in name only

A Brexit not involving a clean break from the jurisdiction of the European Court would be a Brexit in name only

As the formal Brexit negotiations get underway, the Government must grapple with pressing questions about EU citizens’ rights and the future role of the Court of Justice of the European Union (CJEU) in our domestic affairs.

Whilst much of the country was focused on domestic politics, the EU Commission has been adopting an increasingly punitive negotiating stance. In a negotiating position paper on EU citizens’ rights communicated to the UK Government on 12th June 2017, the Commission called for EU nationals and their family members, including some third country nationals, to be guaranteed existing EU law-derived rights in perpetuity within the UK – rights which, in some cases, exceed the rights of UK citizens. Moreover, the paper suggests that the Commission itself should continue to monitor the observance of EU citizens’ rights in this country even after Brexit. Finally, the Commission demands that these rights should continue to be interpreted by, and directly enforceable in, the CJEU in Luxembourg.

This represents a remarkable hardening of the European Union’s position. The demand for indefinite CJEU jurisdiction is extravagant and contrary both to accepted international practice on the settlement of disputes under international treaties and the EU’s own practice.

The EU currently has in excess of 50 association or free trade agreements with third countries in place, in addition to several pending trade and other economic co-operation agreements. In none of them does the third country – not even the tiny states of San Marino or Andorra – submit to the jurisdiction of the CJEU as the Commission proposes for the United Kingdom.

For the closest historical examples of the kind of ‘special jurisdiction’ the Commission seeks to establish over the UK, one has to go back to the treaties concluded between Western powers and Asian countries like China in the 19th century, under which Europeans were subject to the special jurisdiction of extra-territorial courts under the control of their home country. This is not a happy historical precedent, and these agreements are now widely and rightly denounced as ‘gunboat diplomacy’ during the height of imperialism.

CJEU jurisdiction would not only be demeaning, but also place important practical policy constraints on future domestic policy-making in the areas of immigration and external relations. The CJEU has never seen itself as an impartial arbiter in disputes between the EU and member states but as a guardian of the Union interest and a motor of greater harmonisation and ‘ever closer union’ or what it itself, in its judgments, occasionally refers to as ‘the spirit of the Treaties.’ And even as it currently stands, CJEU case law affords EU citizens’ rights in other EU member states, rights which, in some cases, are superior to rights enjoyed by citizens in their host country or those they would enjoy in their own country.

The Government’s White Paper on the Great Repeal Bill sensibly envisages that the jurisdiction of the CJEU will formally end with Britain’s departure from the EU, although pre-Brexit CJEU case law would continue to be enforced by the UK courts until the underlying legislation has been repealed or amended. However, there is at least one worrying feature of the CJEU’s interpretation of the scope of EU citizens’ rights, which the White Paper appears to ignore. This is the little appreciated issue of reverse discrimination.

Reverse discrimination in favour of non-national EU residents has arisen in particular in family reunification cases involving the residency claims of non-EU national family members. Thus, for example, a UK citizen who marries and wishes to settle his/her spouse and family may only do so if s/he has sufficient resources to maintain them without recourse to public funds such as housing or unemployment benefit; yet this requirement does not currently apply to an EU citizen working in the UK who marries a non-EU national and decides to bring both the spouse and any children into the UK.

The CJEU’s case law in the field of EU citizens’ rights and immigration raises serious concerns which warrant a rethink of some of the Government’s proposals in the White Paper on the Great Repeal Bill. The Government’s proposals as they stand would, in some instances, leave British citizens with inferior rights compared to those enjoyed by EU citizens resident in Britain.

If the UK’s departure from the EU does not involve an unequivocal and clean break with CJEU jurisdiction over the United Kingdom, any Brexit deal will not merely be a ‘soft’ Brexit; it would almost certainly be a Brexit in name only.