Brexit briefings - May 2016

Prior to the referendum ILPA commissioned and published a set of position papers on legal issues relating to the EU referendum which may be of interest to members and the general public at this time.

The information below outlines the topic covered by each paper.

1. Sovereignty and legitimacy

Adrian Berry, Garden Court Chambers and Rowena Moffatt, Doughty Street Chambers

Covers the issues raised by the relationship between the UK and the EU in terms of the UK as a sovereign power, and as to the legitimacy of the EU and its institutions. A concern common to both issues is that power ought to be exercised on a democratic basis.

2. Free movement of persons and the single market

Catherine Barnard, University of Cambridge

Considers the centrality of migration to the EU’s single market.  Looks at the relevant Treaty provisions and the rights they confer on individuals wishing to work in another Member State and companies wishing to establish themselves or provide services in another Member State.

3. Rights of entry and residence

Steve Peers, University of Essex

Looks at what rights EU citizens have to enter and reside in other Member States, and how they can be limited. Addresses how EU citizenship ties in with the nationality laws of Member States.

4. EU free movement/citizenship in practice: at home and abroad

Matthew Evans, Director of the AIRE Centre

Covers what it means to be an EU citizen, and what are the rights and wider benefits which derive from this status.

5. EU Citizens’ access to welfare benefits – past, present and future

Desmond Rutledge, Garden Court Chambers

Looks at what welfare benefits EU citizens can claim in the UK, when they can claim them, and this how may change in the light of ongoing changes to the UK’s benefits system and the UK/EU renegotiation settlement agreed in February 2016.

6. The relationship between the European Court of Human Rights and the EU

Nuala Mole, Senior Lawyer at the AIRE Centre

Looks at the the relationship between the ECHR and the EU, focusing on the protection gap that exists as regards acts and omissions of the EU which may breach human rights and the halted accession process. The paper also includes some concluding thoughts on the impact of the relationship between the EU and the ECHR on a post-Brexit UK. 

The full version will be of particular interest to lawyers interested in the precise legal interrelation between the EU and the ECHR, and the relevant case law.

7. Free Movement and Criminal Law

Valsamis Mitsilegas, Queen Mary University of London

Covers when Member States can exclude and expel nationals of other Member States on the grounds of criminal conduct, and how they share relevant information. Also looks at the European Arrest Warrant system, which enables Member States to bring to justice individuals who have entered other Member States to evade prosecution or custody.

8. The implications of UK withdrawal from the EU for immigration policy and nationality law: Irish aspects

Bernard Ryan, University of Leicester

Considers how Brexit could affect the common travel area with the Republic of Ireland and the position of Irish nationals in the UK.

9. The impact of Brexit

Steve Peers, University of Essex

Looks at the UK’s options on Brexit as regards free movement of persons, and the withdrawal process under Article 50 TEU. Considers what would be the implications for EU citizens in the UK and UK citizens in the remaining EU (including a discussion on the issue of ‘acquired rights’ under international law and in particular under Article 70 of the Vienna Convention).

10. The Common European Asylum System

Elspeth Guild, Partner, Kingsley Napley

Considers the Common European Asylum System (CEAS), and how it works for the UK. Also sets out the most recent reliable data on the arrival of asylum seekers in the EU in 2015, and discusses the possible implications of Brexit.

11. The EU’s Borders: Schengen, Frontex and the UK

Bernard Ryan, University of Leicester

Covers the legal framework behind the EU’s internal and external borders. Looks at the position of the UK within the current regime, and the possible implications of Brexit.

12. The implications for Scotland of a vote in the EU referendum for the UK to leave the EU

Maria Fletcher, Nina Miller Westoby and Sarah Craig, University of Glasgow

Discusses the possible implications for Scotland of both a vote for Leave and for Remain, including a summary of the UK devolution settlement and how it has evolved in practice.


ILPA Brexit advocacy series

What should a post-Brexit immigration system look like? ILPA has commissioned a series of papers from leading practitioners and academics to answer that question.  The papers raise the clear need to look beyond party political lines to consider what immigration system would actually be most beneficial to the UK, and how we can treat UK citizens abroad and EU citizens in the UK in a dignified manner, as more than a means to an end.


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