This post, written by Will Perry of Monckton Chambers, covers the enforcement of EU citizens’ rights after the transition period under the Withdrawal Agreement and domestic implementing legislation.
In a previous post, I wrote about what rights EU citizens have under Part 2 of the Withdrawal Agreement. This post considers the ways in which those rights are enforced both legally and politically.
Status of Withdrawal Agreement rights as a matter of domestic law
As the UK is a dualist country, citizens’ rights arising under Part 2 of the Withdrawal Agreement only have practical effect if implemented into UK law by domestic legislation. This function is performed by section 7A of the European Union (Withdrawal) Act 2018 (“2018 Act”). It reads:
“all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the withdrawal agreement… are without further enactment to be given legal effect or used in the UK.”
The effect of section 7A is very similar to that of section 2(1) of the European Communities Act 1972. It acts as the ‘conduit pipe’ by which the Withdrawal Agreement is given direct effect and supremacy as a matter of UK domestic law (as required by Article 4 of the Withdrawal Agreement). This is confirmed by section 7C of the 2018 Act, which makes clear that domestic law implementing the Withdrawal Agreement must be interpreted consistently with relevant Withdrawal Agreement provisions.
As citizens’ rights under the Withdrawal Agreement have direct effect, this means that those rights can be enforced against UK public authorities in UK courts and tribunals. The combination of direct effect and supremacy of citizens’ rights means that EU citizens can rely on Withdrawal Agreement rights regardless of any failure by the UK in implementing those rights into domestic law (via, for example, the relevant Regulations under the European Union (Withdrawal Agreement) Act 2020 (the “2020 Act”)).
Continuing relevance of the CJEU and its caselaw
What happens if a decision regarding citizens’ rights ends up being challenged in the courts (either through either the Asylum and Immigration Tribunal or the High Court by way of judicial review – depending on whether the issue is an immigration one)? How does the Withdrawal Agreement ensure that potentially difficult questions of EU law are decided correctly?
One of the UK’s fundamental aims during Brexit negotiations was to remove the UK from the jurisdiction of the Court of Justice of the European Union (“CJEU”). However, when it comes to EU citizens’ rights, a UK court or tribunal “may” refer any issues arising under Part 2 of the Withdrawal Agreement to the CJEU within 8 years of the end of the transition period (or, for issues regarding settled status, 31 January 2020) “where that court or tribunal considers that a decision on that question is necessary to enable it to give judgment” (Article 158(1)). Though references are not compulsory in such circumstances, if a reference is sought the CJEU’s rulings will apply as if the UK is an EU Member State (Article 158(2)).
There is an interesting comparison to be made between Article 158 and Article 4(5)) of the Withdrawal Agreement. Article 4(5) states that UK judicial and administrative authorities must “have due regard” to relevant post-transition CJEU caselaw, but importantly does not contain an equivalent to Article 158(2) providing that this case law will be binding. This distinction opens up the possibility of some divergence on how courts in the UK and EU-27 approach citizens’ rights issues. Though this prospect is subject to the limiting factor that CJEU caselaw handed down before the end of the transition period will continue to be binding (Article 4(4)).
The Independent Monitoring Authority
Another way in which the courts and tribunals will be aided in deciding difficult citizens’ rights issues is through the ability of both the Independent Monitoring Authority (“IMA”) and EU Commission to intervene in pending cases (Articles 159(1) and 162 respectively). The IMA will also have the power to initiate legal proceedings itself (Article 159(1)).
The IMA will seek to ensure, for at least 8 years after the end of the transition period, that the UK correctly implements and applies Part 2 of the Withdrawal Agreement. The UK must, under Article 159(1), grant the IMA equivalent powers to the EU Commission (which will monitor UK citizens’ rights in EU Member States). These powers include the ability to receive complaints, conduct inquiries and, as mentioned above, initiate and intervene in legal proceedings.
Section 15(1) of the 2020 Act states that “A body corporate called the Independent Monitoring Authority for the Citizens’ Rights Agreements is established.” This has not, however, yet been done in practice. Schedule 2 to the 2020 Act sets out detailed provisions for setting up the IMA.
Some of these provisions are uncontroversial and merely reflect the wording of the Withdrawal Agreement.
Others, however, have been criticised. For example, paragraph 39 of Schedule 2 to the 2020 Act grants the Secretary of State the power to transfer the IMA’s functions “to another body that is a relevant public authority”. Critics say this would permit the Secretary of State to dilute the IMA’s effectiveness by spreading its different functions across multiple public authorities.
Others have queried whether the IMA will begin life as a truly independent body if an interim chief executive of the IMA is appointed directly by Secretary of State (paragraph 3(1)) and is required to “act in accordance with any directions given by the Secretary of State” (paragraph 3(3)). Furthermore, it can also be seen from Schedule 2 that there is no deadline by which the Secretary of State must appoint the non-executive members who will in turn appoint the full-time chief executive.
The EU-UK Joint Committee
The Withdrawal Agreement provides for another important mechanism for the resolution of citizens’ rights issues in the form of the EU-UK Joint Committee (which first met for the first time on 30 March 2020). The Joint Committee is responsible for the implementation and application of the Withdrawal Agreement (Article 164(1)). It has powers to resolve any issues under the Agreement through issuing binding decisions and recommendations (Article 166).
Sitting under the Joint Committee is a Specialised Committee on Citizens’ Rights (Article 166(1)(a), which both the IMA and the EU Commission report to annually (Article 159(2)). It met for the first time on 20 May 2020.
Importantly, the Committee can only issue decisions and recommendations “by mutual consent” (Article 166(3)). It remains to be seen whether that consent will ever be obtained in practice when it comes to citizens’ rights matters.
Share this post on social media: