EU Nationals, Brexit, and the Law

Elise Tai, 3rd Year Law Student, Hertfordshire Law School

Jurisdiction over EU nationals in the UK by the European Court of Justice will end after a two-year transition period following Brexit. Reports have suggested that a meeting of senior ministers chaired by Theresa May on 20th November 2017 had left the door open for some continuing involvement of the Luxembourg court after Brexit. The claim that this meeting, which implied that the prime minister had been given the green light to make a higher offer to Brussels on the “divorce bill” the UK will pay to settle its liabilities on quitting the EU, has not been verified.

Brandon Lewis, an immigration minister, proposed that May was preparing to make concessions to the EU’s demand for European Court of Justice (ECJ) oversight of citizens’ rights when he told MPs that the matter was “part of the negotiations”.

May’s official spokesman denied these claims, stating that the government expected the ECJ’s role to be unchanged during an “implementation period” of around two years following the official Brexit date in March 2019, but that “post that period, the jurisdiction of the ECJ will come to an end.

It is expected that May would soon indicate to the President of the European Council, Donald Tusk, that she is ready to consider a settlement in the region of £38bn, well short of the £53bn being sought by Brussels. However, she is not thought likely to name a precise figure which Britain is prepared to pay until she has a clear idea of what kind of trade deal is available with the remaining EU, with Downing Street insisting that “nothing’s agreed until everything’s agreed”. May’s spokesman would say only that “specific figures or scenarios are all subject to negotiation”.

The issue of jurisdiction over EU nationals ties in with Lord Thomas’ view that there is a greater need for clarity in UK law development. As the Press Association reports, Lord Thomas, a former Lord Chief Justice of England and Wales, told the Lords EU Justice Subcommittee that data law is one area where a possible difficulty could be faced.

Arguing that “the law in Europe is not standing still, it is moving at a huge pace”, his lordship put forward that “the [EU withdrawal] bill is clear about freezing the law, but it is not at all clear about how you keep it up-to-date”. He also highlighted that a second problem was that of the extent to which the Supreme Court of the United Kingdom may be asked to depart and develop slightly different jurisprudence to the CJEU (Court of Justice of the European Union), questioning the impact that this departure would have on people’s willingness to use English law if it doesn’t follow the large regime. Lord Thomas expressed that there was a lack of “real exploration” of these matters and that little thought has been given in regard to the “development of the law for the future”.

The role of the courts in regard to the jurisdiction of EU nationals appears to be a major consideration for all parties involved, as it is the people that make a country. As such, greater consideration ought to be directed towards the development of the law, (for example, the European Union (Withdrawal) Bill), in light of the UK’s decision to leave the EU.



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