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Right to remain may already be guaranteed

by Pavlos Eleftheriadis | 24.03.2017

Pavlos Eleftheriadis is a barrister at Francis Taylor Building and a fellow of Mansfield College, Oxford.

I argued previously that a correct interpretation of the Vienna Convention on the Law of Treaties and Article 50 of the Treaty on European Union results in an opposite conclusion to that taken in a recent House of Lords report. Namely, in the absence of a deal on quitting the EU, all the UK’s existing obligations to the bloc – including its financial obligations – would remain unchanged. The UK cannot escape its obligations merely by walking away.

It is arguable that such obligations may include not only financial obligations but also the UK’s obligation to other EU member states to grant some residence rights to their citizens who are already in the UK (and, of course, vice versa).

This will be a matter of binding EU law, which the European Court of Justice (ECJ) will have an obligation to interpret and apply. This is the opposite of what the House of Lords envisaged. The absence of an agreement will thus guarantee all vested rights as they stood at the time, not none.

Perhaps even less welcome to the government must be the realisation that the jurisdiction of the ECJ is inescapable, since Brexit is governed by Article 50. Although after Brexit the ECJ will not have jurisdiction for the enforcement of judgements over the UK, the legal issues that arise out of the application of Article 50 are issues of EU law, which international law merely supplements.

With or without a withdrawal agreement, the interpretation and recognition of rights and obligations that arise out of the UK’s departure are matters of EU law which will remain under the jurisdiction of the ECJ under Article 50.  This is what the UK signed up for and what parliament intended when it passed the European Union (Amendment) Act 2008, which marked the ratification and incorporation of the Lisbon Treaty, including Article 50.

This is the last of three articles on the legal implications of quitting the EU without a deal. The first argued that any financial obligations to the EU will be enforceable. The second argued that the UK’s obligations wouldn’t fall to zero if we leave without an agreement.

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Edited by Hugo Dixon

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