A Very UnBritish Suggestion: EU Nationals pre- and post-Brexit
Some contributors to the recent debate about the status of EU nationals in the United Kingdom post-Brexit have proposed that a distinction be drawn between those who were in the UK before the referendum and those who have come more recently. See the Judicial Power Project; and British Future (esp pp. 16-17).
The basic idea is that, before leaving the EU, the UK might announce that, after a specified date, ‘new’ EU nationals would have a second-class status relative to those EU nationals already in the UK. British Future suggests that the cut-off date should be the triggering of Article 50, whereas the Judicial Power Project refers to those “recently arrived”, who should be distinguished “from those who are long-settled”.
Full disclosure: I am an EU national “recently arrived” in the UK, exercising my freedom of movement rights.
It is important to be clear about the proposed distinction. The express goal would be to create two classes of individual, even though those affected would have done nothing wrong. Those arriving – lawfully – after a specified date would be treated differently from those who had arrived – lawfully – earlier. Even when the UK triggers Article 50, it will remain a member of the EU. Until the UK actually leaves the EU, the freedom of movement of EU nationals will be part of domestic law.
Accordingly, it is worth posing some questions. Since when has it been part of British values to treat individuals differently on the basis of lawful behaviour? Since when has the UK sought to punish or disadvantage people for engaging in lawful activity?
Invoked in favour of the proposed distinction is the dubious idea of a moral “legitimate expectation” (British Future at pp. 16-17). And of course it has to be a “moral” legitimate expectation, because as should by now be obvious, the idea has not even the remotest connection to law. The analogy to legitimate expectation is spurious. For it is Administrative Law 101 that a legitimate expectation must be consistent with the law: and here, the law will allow EU nationals to move freely to the UK to exercise their Treaty rights until Brexit has actually occurred.
It has been suggested that any attempt to introduce a second (or third, or fourth – why stop at two?) class of EU nationals resident in the UK would risk breaching the European Convention on Human Rights (see the recent report of the Joint Committee on Human Rights, at paras. 50-53). But let us leave the foreign Convention to one side and see what the common law has had to say about punishing or disadvantaging people for engaging in lawful activity.
Congreve v. Home Office  QB 629 arose after a proposed increase in the television licence fee from £12 to £18. The plaintiff – and many thousands of others – applied for a renewal of an unexpired licence before the increase came into effect. The Home Office issued instructions that renewals of unexpired licences should not be given. But Mr. Congreve (a solicitor) did not tell the Post Office counter clerk that he had an unexpired licence. No doubt others similarly omitted to provide this information. The Home Office subsequently wrote to those who had managed to renew their unexpired licences, demanding payment of the additional £6 on pain of revocation (or, in a second letter, early expiration) of the licences. Under s. 1(4) of the Wireless Telegraphy Act 1949, a licence could be revoked by notice in writing. Phillips J., at first instance, saw nothing objectionable in leaving “a number of choices open” to persons in the situation of the plaintiff (at p. 641). On appeal, however, a different view was taken.
Lord Denning MR treated s. 1(4) as “a very special kind of power”: “It invades a man in the privacy of his home, and it does so solely for financial reasons so as to enable the Minister to collect money for the revenue” (at p. 649). Here, the Minister had no reasons related to the statute to revoke the licenses: “The licence is granted for 12 months and cannot be revoked simply to enable the Minister to raise more money. Want of money is no reason for revoking a licence. The real reason, of course, in this case was that the department did not like people taking out overlapping licences so as to save money. But there was nothing in the Regulations to stop it. It was perfectly lawful: and the department’s dislike of it cannot afford a good reason for revoking them” (at p. 652). For Roskill LJ, the plaintiff had been issued with a valid licence; that was the end of the matter: “If the Home Office want to attain the result they have sought to attain, they must obtain the necessary legislative powers. In my view they have not got them and did not possess them at the material time and they cannot be allowed to act as if they had possessed them through what I regard as a misuse of the power of revocation” (at p. 659). Geoffrey Lane LJ offered two reasons for considering the exercise of the s. 1(4) power to be ultra vires: “First, it is coupled with an illegal demand which taints the revocation and makes that illegal too. Secondly, or possibly putting the same matter in a different way, it is an improper exercise of a discretionary power to use a threat to exercise that power as a means of extracting money which Parliament has given the executive no mandate to demand” (at p. 662).
Browne-Wilkinson LJ’s dissenting judgment in Wheeler v. Leicester City Council  AC 1054 (upheld on different grounds by the House of Lords) is also of interest. A number of Leicester Football Club (a rugby club) were toured with the England national team in apartheid South Africa. As a consequence, the Council banned the club from using a recreational facility for a period of 12 months. In the period between the players being selected to tour and going on the tour, the Council had exerted pressure on the club, but the club went no further than to appeal to the individual consciences of the players involved. Browne-Wilkinson LJ saw the case as raising a conflict between two fundamental principles: “on one hand, the right of a democratically elected body to conduct their affairs in accordance with their own views and, on the other, the right to freedom of speech and conscience enjoyed by each individual in a democratic society” (at p. 1061). For him, “the club was punished for its failure to speak and act in the particular way required by the council” (at p. 1063). This was unlawful, because the Council had based its decision on legally irrelevant factors:
[W]hen Parliament confers general discretionary powers on public authorities it cannot in general be taken to have contemplated that such discretions can be exercised by taking into account the lawful views of those affected by the exercise of the discretions or their willingness to express certain views. If in exercising such discretions these factors have been taken into account, the exercise of the discretion is unlawful since a legally irrelevant factor has been taken into account. There are however exceptional cases where the views held or expressed by the individual are directly relevant to the purpose for which the power has been conferred. For example, in exercising a power to appoint a director of religious education the religious views of the applicants must obviously be relevant. But in relation to public open spaces, the views of those using such spaces have nothing to do with the use of the land (at p. 1065).
These cases involve judicial review of administrative action, whereas the proposed distinction would presumably be given a legislative basis. But the cases nonetheless a fundamental value of the common law: there is nothing less British than punishing or disadvantaging people for engaging in lawful behaviour, which would be the effect of making the proposed distinction.
This content has been updated on February 26, 2017 at 22:50.