Europeans Living in Britain ‘Could Have Super-Rights’

A former judge at the Luxembourg-based European Court of Justice (ECJ) has said European nationals living in the UK could become “a super-privileged caste” entitled to more rights than Britons after Brexit.

Franklin Dehousse, a professor at the University of Liège who has previous experience of negotiating EU treaties and who retired from the bench in October, said that demands from Brussels, including that the ECJ retain supremacy over UK law to enforce rights for EU nationals, could jeopardise a final deal.

His warning suggests discomfort among Europe’s legal establishment in Brussels and echoes comments made by Brexit secretary David Davis that demands by anti-Brexit hardliners to maintain the supremacy of the EU courts could leave the UK without a deal, in chaotic circumstances.

Professor Dehousse’s warning, in a paper for the Belgian Egmont Royal Institute for International Relations, a think tank, came after Michel Barnier, the EU’s lead negotiator, said in a negotiating paper published a few days earlier that the European Commission and the ECJ would oversee “directly enforceable vested rights” for European nationals resident in the UK and British nationals living in Europe after Brexit.

The negotiating text suggests the EU courts would have primacy over the British judiciary to uphold lifelong rights for European nationals and their offspring including the right to bring non-European family members into the UK and access to public services and employment on the same terms as Britons.

‘Hard to justify super-privilege for EU migrants in UK’

“It is hard to justify that EU migrants, through the maintaining of many European regulations, will become some sort of a super-privileged caste in the future UK,” said Professor Dehousse, adding that he wondered how an EU demand that Britain be ruled by a foreign court could be considered acceptable for a sovereign state. “Such a state would thus be bound by decisions taken by a judicial authority where it is not represented and whose judges would be appointed by its potential opponents,” he said.

Professor Dehousse, who also dismissed claims Britain owed €100m (£85m) to Brussels, cautioned against extensive use of the ECJ in the Brexit process owing to its “very heavy procedures and very high costs.”

He wrote in the paper for the Egmont Institute: “The EU must be extremely careful about the precedents it is creating now. Most people do not see it, as they did not believe before that Article 50 would ever be used, but there will be other exits from the EU . . . We thus need reflect carefully to create future incentives for fair deals, and not systematic clashes. Article 50 was invented, after all, to show that the EU was not a prison. We must apply it accordingly.”

European residence ruling runs against UK policy

The European Court of Justice has ruled that individuals from outside the EU whose child is an EU citizen have a right to live there even if the other parent is an EU national and capable of childcare. In a previous judgment, the court had said that non-EU nationals had a right of residence if they were the main carer of a child whose other parent was from the EU.

The court made the judgement in the case of a woman from Venezuela who had a child with a Dutch citizen from whom she has since legally separated.

She was denied social welfare and child benefit payments by Dutch authorities.

“The ruling gives more residence rights to non-EU parents of EU children in their home state than some member states had wanted,” said Steve Peers, an expert in EU law at the University of Essex.

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