Past gives hope to EU nationals living in the UK
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For EU citizens living in the UK and worried about their status, the Windrush scandal will have had a particularly chilling effect. But, says BRAD BLITZ, there are encouraging legal precedents they can look to.
It is hard to recall a recent scandal that has shocked the country quite like the Windrush debacle. But there is one group for whom the recent revelations must be particularly disconcerting: European nationals living in the UK. This is because the case raises important questions about their own rights and status, in the light of Brexit.
Although EU nationals have relied on their residency status – as opposed to nationality, as is the case of the Windrush generation – in terms of human rights law, the differences between nationality rights and residency rights are quite minor. Nationality offers greater political rights, but all people enjoy human rights, irrespective of their nationality status.
Like the Windrush generation, EU nationals face uncertainty. Of most concern is the impact of Brexit on Article 8 of the European Convention on Human Rights – the right to respect for one's private and family life.
As Dr Dimitrios Giannoulopoulos, a legal expert at Brunel University, argues, the UK and EU may currently be violating European human rights law by creating prolonged periods of uncertainty. He notes in particular the decision of the European Court of Human Rights in the 2006 case of Aristimuño Mendizabal v France. In this case the French authorities, concerned by Mendizabal's alleged links to Basque terror group ETA, were deemed to have breached Article 8 by giving her short-term right to remain on 69 occasions over 14 years, instead of the full residence permit she was due as a Spanish citizen.
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There are other judgments too which are also relevant to both the Windrush scandal and fate of EU nationals.
• In Genovese v Malta – which concerned a young man born to a British mother and Maltese father who was denied Maltese nationality because he was born out of wedlock – the court took a view that the denial of citizenship had a negative impact on the applicant's 'social identity', which fell within the scope of Article 8. This case is especially important because arguably EU citizenship is also a form of social identity. By ending the right to EU citizenship, the UK government may be violating the rights to private and family life as enjoyed by millions of people.
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• The judgment in Marckx v Belgium – which concerned Belgian parents who were required to adopt their illegitimate child in order to increase his rights to inheritance – clarified how family life should be understood. The court noted that the object of Article 8 is to protect the individual against arbitrary interference by the public authorities. It ruled that Belgium had infringed the right to private and family life and found that states not only have a duty to limit their interference in private life to lawful applications of domestic law, but may also have a positive obligation to demonstrate effective respect for family life. It defined this to include 'at least the ties between near relatives, for instance, those between grandparents and grandchildren, since such relatives play a considerable part in family life'. This judgment is important because just as the Windrush generation enjoyed inter-generational family ties which connected them to the UK, so too do many EU nationals.
• In the case of Kuri? and others v Slovenia – which concerned the withdrawal of residency rights to more than 25,000 permanent residents, nationals of the former Yugoslavia who were living in Slovenia – the court ruled the revocation of residency rights violated Article 8 through its affect on private and family life. This case is perhaps the most significant because the court recognised that the cancellation of residency rights – an event described as 'the erasure – was unlawful because it had not been sufficiently foreseeable. As settled and permanent residents, Kuri? and his co-applicants could not have reasonably expected that their residency rights would one day be cancelled.
In the case of both the Windrush generation and EU nationals who moved to the United Kingdom, they did so with the expectation that they enjoyed rights which would be upheld. Given the previous statements by members of the UK government regarding their intentions – and the vague formulation of the 2016 referendum which simply asked, 'Should the United Kingdom remain a member of the European Union or leave the European Union?' – one question for the Court of Justice of the European Union is whether or not the basis for cancelling EU citizenship rights also meets the test of being foreseeable. I suggest it does not.
While the court must decide if EU citizenship constitutes a social identity, the Windrush scandal sends an important signal. The government should be mindful not to further interfere in the private life of individuals residing here.
Brad K Blitz is a professor of international politics at Middlesex University and senior fellow at the Global Migration Centre at the Graduate Institute in Geneva
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