Article 50 of the Treaty on the European Union (‘EU’) states that following a notice of intention for a member state to leave the EU, the treaties which govern the EU will cease to apply within two years thereafter.
Following the Brexit referendum in June 2016, a challenge was brought against the Secretary of State of Exiting the EU claiming that a notice could not be served without prior authorisation by an Act of Parliament.
The Divisional Court of England and Wales held against the arguments of the Secretary of State which resulted in an appeal to the Supreme Court.
The Supreme Court dismissed the Secretary of State’s appeal stating that a notice can only be served following an Act of Parliament authorising the Government to do so.
Section 2 of the European Communities Act 1972 ensures that EU law is a part of UK law and takes precedence over all domestic sources of UK law. Leaving the EU will inevitably result in the substantial change of UK law, a change so great that it must be made in the only way permitted by the UK constitution, namely by legislation.
This could slow down Theresa May’s plans for a “Hard Brexit”, but is unlikely to stop it entirely.
All but one of the Conservative MPs are expected to vote in favour of serving the notice to commence Article 50, and Labour leader, Jeremy Corbyn, has said that his MPs should not seek to block it. However, MPs may attempt to amend the bill by adding conditions about the sort of Brexit the government should negotiate.
Last week Mrs May detailed her intentions for the UK to leave Europe’s single market, likely resulting in the end of the free movement of people. However, she wishes to guarantee the rights of EEA nationals in the UK on the condition that reciprocal protections are granted to UK nationals residing in the EEA.
The government is prioritising the protection of the Common Travel Area with Ireland meaning Irish citizens wanting to move to the UK for work are unlikely to be affected.
However, it seems probable that future migration of EEA citizens to the UK will be decided on the basis of the immigration rules in which non-EU citizens are generally judged under.
It is still unknown how EEA citizens who do not currently hold Permanent Residence in the UK, nor those who will qualify for Permanent Residence before the UK exits the EU, will be protected without the security of a visa evidencing their rights to reside in the UK.
This failure to provide unconditioned guarantees to protect the 3 million EEA nationals residing in the UK is disappointing.
SA Law would therefore advise that EEA nationals and their family members residing in the UK ensure that all documentation linking them to the UK are kept safe in the event that a Permanent Residence application is mandatory to remain within the UK.
SA Law will continue to provide updates on Brexit as details unfold, and we are open to advise individuals and businesses on how they may be affected and protected in the wake of this uncertainty