Brexit, Human Rights, and a New Brimmigration Policy
By Courtney McCausland
Brexit
The recent proliferation of trans-Atlantic isolationist rhetoric manifested itself this summer in the form of “Brexit” – the withdrawal of the United Kingdom from the European Union (EU) following the results of a public referendum. The ‘leave’ campaigners, who advocated for this withdrawal, heavily emphasized the need for increased border autonomy and immigration restrictions as part of their platform; but as the campaign progressed it was increasingly accompanied by a dialogue that became explicitly racist, particularly denigrating immigrants from Eastern European countries.[1] Following the referendum results, a slew of hate crimes directed against the Polish community in the UK gave rise to concerns over expulsion/deportation and other potential immigration consequences.[2] Fortunately, the government has since stated, “that they expect the approximately 3 million EU migrants in the UK to be granted ‘legal status’ following an official exit.”[3]
Theresa May, the new Prime Minister of the United Kingdom and leader of the Conservative Party (who was quietly opposed to the Brexit, but appears prepared to follow through with the unexpected results of the democratic referendum) has said that the “EU ideal of freedom of movement c[an] no longer prevail in post-Brexit Britain. ‘I’m very clear that the Brexit vote gave us a very clear message from people, that we couldn’t allow freedom of movement to continue as it had done hitherto… Brexit means Brexit. The campaign was fought, the vote was held, turnout was high, and the public gave their verdict. There must be no attempts to remain inside the EU, no attempts to rejoin it through the back door, and no second referendum.’”[4]
Exit from what exactly?
It seems clear therefore, in light of the results of the referendum, that some major changes in immigration policy are pending before the United Kingdom. But what is this ‘EU ideal of freedom of movement’ that the UK seeks to depart from? Let’s start by examining the broader context. For those less familiar with European governing structures, the EU was created following World War II in order to “foster economic cooperation: the idea being that countries that trade with one another become economically interdependent” and so are less likely to go to war.[5] What began as an economic union grew and took on a political component – member states now delegate some of their national sovereignty to the EU “so that decisions on specific matters of joint interest can be made democratically at the European level.”[6] In exchange they enjoy, among other things, a ‘single market’ where “people, goods, services, and money can move around the EU as freely as within a single country.”[7] For the leave campaigners, this freedom of movement of people was no longer considered a benefit, but rather a threat to the prosperity of the nation.[8]
The European Union as an entity should not be confused with the European Council (which is a body of the EU made up of the respective heads of member states[9]), nor with the Council of Europe. The Council of Europe is an international organization that was created to “promote democracy and protect human rights and the rule of law in Europe.”[10] Including the United Kingdom, it currently maintains 47 member states, 28 of which are members of the EU, and all of which are required to sign the European Convention on Human Rights in order to become members.[11] Because the European Union and the Council of Europe are separate and distinct bodies, even if/when the UK concludes its exit from the EU, it will remain a member of the Council of Europe and a party to the European Convention on Human Rights.
A human rights informed immigration policy
Given the isolationist, and often racist, tenor of the dialogue surrounding the Brexit, the European Convention on Human Rights may play a significant role in the coming months as the British government crafts a new immigration policy.[12] Although not all signatories to the European Convention on Human Rights are also signatories to all of the additional protocols, the United Kingdom has signed (but not ratified[13]) Protocol Number 4. Having signed, but not ratified, this protocol, the UK is not fully bound by it – however, they do have a legal obligation “not to defeat the object and purpose” of this treaty.[14] Therefore Article 4 of Protocol Number 4 is particularly worth noting, as it states “Prohibition of collective expulsion of aliens: Collective expulsion of aliens is prohibited.”
“The absolute prohibition of collective expulsions derives from customary international law… The underlying principle of the prohibition of collective expulsions is the requirement that each claim be examined on an individual basis, in a fair and objective manner,”[15] which is to say that people may not be expelled without an individual review of the circumstances of their case. In Nolan and K. v. Russia,[16] the European Court of Human Rights held that “the concept of expulsion is autonomous and independent of the definitions provided by domestic legislation…. ‘[w]ith the exception of extradition, any measure compelling an alien’s departure from the territory where he was lawfully resident constitutes an ‘expulsion.’”[17] Expelling entire groups of immigrants from the UK without individual review of each case would therefore be a clear violation of human rights law.
Conclusion
The exit of the United Kingdom from the European Union, driven by the leave campaign, was fueled by isolationist rhetoric that was later accompanied by explicitly racist dialogue. If and when the UK does conclude its exit from the EU and its associated obligations, this will not extend to its standing within the Council of Europe. Its continued membership in this organization and the European Convention of Human Rights requires that any new immigration policy crafted by the UK must be informed by these legally binding human rights standards. While the government of the United Kingdom has stated that they expect to grant legal status to current residents, at this time we can only speculate what form the new policy will take and what its implications will be for those immigrants already residing in the UK. What is clear, however, is that any policy leading to the collective expulsion of legal residents would be a violation of human rights law.
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[1] Iman Amrani, Why Do Some of Us With Migrant Parents Want to Vote for Brexit?, The Guardian, (June 22, 2016), https://www.theguardian.com/commentisfree/2016/jun/22/migrant-parents-vote-brexit-british-vote-leave; Heather Stewart & Rowena Mason, Nigel Farage’s Anti-Migrant Poster Reported to Police, The Guardian, (June 16, 2016) http://www.theguardian.com/politics/2016/jun/16/ nigel-farage-defends-ukip-breaking-point-poster-queue-of-migrants.
[2] Polish Media in UK Shocked by Post-Brexit Hate Crimes, BBC News, (June 28, 2016) http://www.bbc.com/news/world-europe-36656348; What Does Brexit Mean for EU Migrants and Their Family Members?, Joint Council for the Welfare of Immigrants, (July 12, 2016) https://www.jcwi.org.uk/blog/2016/07/12/what-does-brexit-means-eu-migrants-and-their-family-members.
[3] What Does Brexit Mean for EU Migrants and Their Family Members?, supra note 2.
[4] Where Does Theresa May Stand on Brexit and Immigration?, Al Jazeera, (July 12, 2016) http://www.aljazeera.com/news/2016/07/theresa-stand-eu-immigration-160712074543697.html.
[5] About the EU, European Union, https://europa.eu/european-union/about-eu/eu-in-brief_en (last accessed Aug. 21, 2016).
[6] How to Distinguish Us, Council of Europe, https://www.coe.int/en/web/about-us/do-not-get-confused (last accessed Aug. 21, 2016).
[7] One Market Without Borders, European Union, https://europa.eu/european-union/topics/single-market_en (last accessed Aug. 21, 2016).
[8] This despite the fact that the UK already had much stricter border controls than almost any other EU member. Schengen Area, European Commission Migration and Home Affairs, http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/index_en.htm (last accessed Aug. 21, 2016).
[9] How to Distinguish Us, supra note 6.
[10] Id.
[11] Who We Are, Council of Europe, http://www.coe.int/en/web/about-us/who-we-are (last accessed Aug. 21, 2016). The European Court of Human Rights has jurisdiction to review the implementation of this convention within the member states. Id. In the UK the Human Rights Act of 1998 partially incorporated this convention into domestic law. Katie Boyle & Leanne Cochrane, Brexit and a British Bill of Rights: Four Scenarios for Human Rights, UK in a Changing Europe, http://ukandeu.ac.uk/explainers/brexit-and-a-british-bill-of-rights-four-scenarios-for-human-rights/ (last accessed Aug. 21, 2016).
[12] There are many other human rights instruments of relevance for consideration here that the United Kingdom is also bound by, but unfortunately they fall outside the purview of this discussion.
[13] Chart of Signatures and Ratifications of Treaty 046, Council of Europe, https://www.coe.int/ en/web/conventions/full-list/-/conventions/treaty/046/signatures?p_auth=tvQnPZSs (last accessed Aug. 21, 2016).
[14] Art. 18, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations (1986).
[15] Yannis Ktistakis, Protecting Migrants Under the European Convention on Human Rights and the European Social Charter: A Handbook for Legal Practitioners, 104-05 (Council of Europe Publishing)(2013).
[16] Eur. Ct. H.R. (2009), available at http://hudoc.echr.coe.int/eng#{"docname":["nolan and k v. russia"],"itemid":["001-91302"]}.
[17] Ktistakis, supra note 15, at 79 (citing para. 112).