The European Union (Notification of Withdrawal) Bill was published on 26th January 2017, where it began its journey through the Houses of Parliament.
The first reading in the House of Commons took place on 26th January. The second reading and the vote took place from 31st January to 2nd February. After the debate, the Bill left the Commons on 8th February with no amendments being made to the Bill in the Committee. It passed Third Reading by 494 votes to 122.
The Bill then moved to the House of Lords, where the Lords decided to amend it to force the Government to guarantee the rights of EU citizens living in the UK.
Baroness Hayter of Kentish Town moved an amendment to the Bill, to insert: "( ) Within three months of exercising the power under section 1(1), Ministers of the Crown must bring forward proposals to ensure that citizens of another European Union or European Economic Area country and their family members, who are legally resident in the United Kingdom on the day on which this Act is passed, continue to be treated in the same way with regards to their EU derived-rights and, in the case of residency, their potential to acquire such rights in the future."
The original Bill makes no reference to EU citizens currently living in the UK. The House of Lords voted 358 to 256 in favour of Lady Hayter’s amendment.
The Bill will now move back to the House of Commons, where MPs will decide whether to accept or reject the changes made by the Lords. If the changes are accepted the Bill will receive Royal Assent and become law. However, if it is rejected it will go back to the Lords for further debate. The result may be what is known as a game of constitutional “ping pong”.
The UK Government are intending to trigger Article 50 this month, and so this matter will need to come to a conclusion soon. The ‘post-Brexit’ rights of EU citizens living in the UK are a matter of some contention and will carry significant amount of weight in the forthcoming Brexit negotiations.
The freedom of movement and residence of persons in the EU is a cornerstone of Union citizenship, as established by the Treaty of Maastricht in 1992. The Treaty of Maastricht introduced the notion of EU citizenship to be enjoyed automatically by every national of a Member State. It is this EU citizenship that underpins the right of a person to move and reside freely within the territory of any Member State. The Lisbon Treaty confirmed this right, which is also included in the general provisions on the Area of Freedom, Security and Justice. In order to consolidate different pieces of legislation and take account of the large body of case law linked to free movement of persons, a new comprehensive directive was adopted in 2004 – Directive 2004/38/EC of the European Parliament and the Council of 29th April 2004 on the right of citizens of the Union and their family members to move and reside freely within the Member States (“the Directive”).
The rights that the Directive gave citizens of EU Member States, to move to and reside in other Member States are being called into question following the decision by the UK to leave the EU, as those laws will no longer form part of UK law as they once did by virtue of the 1972 Act [link]. The rights that UK nationals living throughout the EU have and those of nationals of other Member States living in the UK could now potentially cease. In the Miller Case Supreme Court Judgment of 24th January 2017, it was noted that the Divisional Court identified three categories of right, one of which was rights capable of replication in UK law. The judges note that many EU rights fall within this category including the rights of non-residents to benefit from the “four freedoms” (free movement of people, goods and capital, and freedom to provide services). The Great Repeal Bill provides an instrument by which the right could be replicated in a new statute; however, at this stage, it remains unpublished.
As the Bill moves through the UK Parliament, it is clear that at this stage the right of EU citizens to remain in the UK following Brexit is yet to be decided.