The Human Rights implications of a ‘No Deal’ Brexit

After months of Brexit negotiations defined by incremental progress and deteriorating relationships, the high levels of panic can be judged by the fact that Theresa May’s repeated insistence that ‘no deal is better than a bad deal’ is increasingly being discussed as a viable option. The government is characteristically split on this issue, with chief Brexit negotiator David Davis seeing it as a key negotiating lever. Yet Home Secretary Amber Rudd labelled such a scenario “unthinkable”, whilst Chancellor Phillip Hammond has earnt the ire of the Daily Mail for his apparent lack of confidence in post-Brexit Britain.

The danger is that this disarray will turn into a self-fulfilling prophecy, as the government’s inability to move negotiations forward is eating into the precious and limited time available to reach the best possible agreement. Jens Geier, the German Vice Chair of the European Parliament’s budget committee, recently described how the government’s disarray is preventing any ‘sustainable progress’, and argued that a no deal scenario is in fact preferable to a bad deal – for the EU. As the Brexit cliff edge is now emerging as an unwelcome speck on the horizon, it is important to consider what it would mean for our human rights if we plunged down it.

The prospect of no deal has added another unwelcome notch of strain to the worries of those whose citizens’ rights remain unclear. Following her government’s year-long refusal to guarantee the exact continuation of the existing rights of the 3 million EU citizens living in the UK, the Prime Minister confirmed that some of their rights “would fall away if there was no deal.” These include the right to move around the EU to work and the right to settle with family members who are based abroad. Amber Rudd sought to clarify the government’s stance by stating that the Home Office’s ‘default position’ will be to accept residency applications. But this is not the same as a guarantee of rights, and as Shadow Home Secretary Dianne Abbott rightly asked in a recent intervention on behalf of EU citizens, “who in the cabinet can be trusted to uphold these rights in the absence of a deal?”

This eventuality would also destroy any hope for a beneficial reciprocal deal for the 1.2 million UK citizens living in EU countries, who would be left stranded under the varying jurisdictions of their respective host countries. As the existing EU directive for third party nationals confers comparatively few rights, especially for those without five years residence, a no deal scenario would likely scythe through the current freedoms of Britons living across Europe.

Whilst much of our ability to preserve our European-derived employment and equality protections will hinge on the passage of ‘The Great Repeal Bill’ a no deal scenario would strengthen the hand of those seeking to undo crucial rights. In the event of an acrimonious and incomplete settlement, it is extremely likely that anti-European sentiment would increase in political currency. A recent study by The UK in a Changing Europe warned of “a bitter and divisive period” in the event of a no deal, which could provide fertile ground for those hoping that Brexit ignites a race to the bottom amid the ‘legal chaos’ as all pre-existing legal arrangements simultaneously evaporate.

It is also likely that a no-deal political climate would lead to the extension of the most regressive aspects of our non-EU immigration system, particularly the spousal income requirement, which prevents thousands from exercising their right to a family life. A no deal scenario would also reduce the onus upon UK courts to keep up to date with European rulings, which would raise the undesirable prospect of the UK lagging behind human rights progress made on the continent.

Much of the focus on a Brexit ‘cliff edge’ has rightly concentrated on the economic ramifications, with a recent Resolution Foundation study finding that low and mid income families would be hit the hardest. Yet a situation in which Britain crashes out of the EU and embraces the guidelines of the World Trade Organisation would raise significant human rights concerns. An increased reliance on partners such as Saudi Arabia will run the risk of undermining human rights and labour standards, and will make it considerably harder to implement a rights-based foreign policy.

Labour has been unequivocal in its condemnation of this Tory delusion, with Dianne Abbott’s welcome intervention one of many. Labour’s victory in delaying the vote on the Great Repeal Bill shows how strong a voice it can be in favour of a sensible Brexit. Labour will need to shout as often and as loudly as possible if we are to avoid the near-dystopian vision of a no deal Brexit.

Joe Duffy is the Campaign Volunteer with the Labour Campaign for Human Rights

This article was first published as part of our Brexit and Human Rights Campaign. 

LCHR’s response to the leaked Home Office document

The recently leaked Home Office paper proposing a post-Brexit border, immigration and citizenship system may have only offered us a glimpse into the government’s mindset. Yet it was enough to validate fears that when balancing human rights, an immigration system which benefits our economy and the wishes of hard-line Brexiteers, this government would topple towards the latter with harmful and long-lasting consequences.

As one campaigner succinctly put it, the paper “is explicit about ending a rights-based approach” to immigration. EU citizens arriving after Brexit would have to show passports rather than their current ID cards, and could have to apply for biometric residence permits; erecting a symbolic barrier between us and our closest neighbours. In a dramatic reduction of the right to settle in Britain, lower-skilled EU migrants would be offered residency for a maximum of two years. The paper also plans to constrict the range of family members permitted to join EU citizens in the UK and make EU citizens subject to the destructive and unjust spousal migration income requirements, an approach which risks the splintering of thousands of families.

A worrying by-product of these proposals is that they would accelerate the delegation of border control away from the home office and into our communities. As Home Secretary, Theresa May intentionally created a “hostile environment” for illegal immigrants which incentivises private sector landlords, teachers, medical staff and other public-sector workers to act as unpaid immigration officers by forcing them to provide information to the authorities. With no regard for the cohesion of our communities, Prime Minister May now intends to use her promotion to extend this damaging policy to EU citizens.

Many prominent Labour figures have criticised the constricting effect that this approach may have on the economy, with Sadiq Khan describing how the plan “read like a blueprint on how to strangle [London’s] economy” and “risks thousands of families being split up.” The economic validity of these policies appears to be in question, as demonstrated by the leak of a government begging letter imploring that corporations set aside their reservations to offer their support.

Yet the shadow cabinet’s hesitance to criticise the economic aspects of the proposal outright is understandable. Labour MPs represent a diverse range of constituencies, the majority of which voted to leave the EU – a decision which was most likely influenced by a desire to see increased control over immigration. Many Labour voters hold legitimate concerns about the squeeze on jobs, wages, healthcare, housing, and welfare.

Labour must help constituencies that have suffered from the worst excesses of globalisation. But equally, Labour must fight against this current government’s tendency to place the full weight of our economic difficulties upon those who actively contribute to our society. The leaked briefing wilfully ignored the overwhelming weight of evidence that migrants contribute to our economy to assert that “to be considered valuable to the country as a whole, immigration should benefit not just the migrants themselves but also make existing residents better off.”

Labour cannot feel trapped by a discourse which defines migrants as a drain on our economy, and therefore sees their rights as dispensable. If this leaked document is to form the basis of the government’s immigration bill, Labour must see this as an opportunity to impose its parliamentary strength and to begin reshaping the narrative. Backing a cross-party amendment to reduce or scrap the pernicious means test for spousal migration would, for instance, send a clear message that human rights must be at the centre of any post-Brexit immigration policy.

Perhaps the most unnerving discovery of this leak is that, far from being ludicrous empty rhetoric, Theresa May’s desire for a ‘Red White and Blue Brexit’ now appears to be the blueprint for our future immigration policy. Within a global context in which our increasingly international and intersectional crises are ominously met with the rise of those who propose nationalist and isolationist solutions, Brexit has brought Britain’s role on the world stage to a crucial junction. Labour must not allow us to succumb to retreating inwards at a time when climate change and convulsions against globalisation make our rights contingent on global solutions.

Joe Duffy is the Campaign Intern at the Labour Campaign for Human Rights

This article was published as part of our dedicated Brexit and Human Rights Campaign

Immigration reform through labour regulations

Many have suggested free movement between the EU and the UK should not survive Brexit because it would continue to facilitate the kind of large-scale immigration from Europe that people specifically voted to end.

It’s certainly true that many are hostile to low-skilled immigration, of which there is a significant amount from the EU, though there is much more support for higher-skilled immigration. This hostility isn’t necessarily the product of xenophobia – there are legitimate concerns about downward pressure on jobs, wages, healthcare, housing, and welfare – and about the pace of cultural change in communities where thousands of new immigrants can arrive in a very short space of time. These concerns should be taken seriously.

But is wholesale immigration reform actually necessary to reduce migrant numbers? One of the most common answers I’ve heard to the immigration question during the course of this project is that labour regulation reform would be sufficient to address the concerns people have.
What exactly does this mean?

Firstly it means cracking down on companies and recruitment agencies that fail to advertise jobs in Britain and instead go straight to Eastern Europe and elsewhere. It also means cracking down on false self-employment and raising the minimum wage, which should make low-wage jobs more appealing to British workers.

If this plan succeeds, it might mean any changes to free movement with the EU are rendered unnecessary, assuming addressing public concerns over immigrant numbers is our main objective.

However, the picture is a little more complex than this proposal perhaps allows. Arguably, what people are looking for more than reducing immigration policy to a numbers game, is greater control. Interfering with the supply and demand of immigration from Europe wouldn’t necessarily address this concern, but introducing reforms such as yearly quotas for low-skilled migration probably would.

The proposal is also untested. What impact would raising the minimum wage really have, for example? Would it really be enough to motivate British workers to pick strawberries and perform other jobs they may consider undesirable? Or would it actually increase the financial draw for workers from overseas? There’s really no way to know unless we go ahead and try it.

Reforming labour regulations should most certainly be part of the equation when we’re looking at addressing the post-Brexit immigration question, but it may not be the whole picture. Whatever the case, we must ensure that whatever immigration system emerges after Brexit, it is underpinned by progressive principles rather than the reactionary politics that gave us the net migration target and other senseless policies.


Andrew Noakes is the Director of the Labour Campaign for Human Rights

This article was originally written for our dedicated Brexit and Human Rights Campaign 


Exploring the EFTA template: How Labour can overcome the impasse on citizens’ rights.

Despite persistent calls from Labour and various citizens’ campaign groups to ringfence the rights of the 3 million EU citizens living in the UK and the 1.2 million Britons living in EU countries, they are now seemingly stuck within the posturing and trade-offs of the Brexit negotiations.

Theresa May’s “serious and generous offer” centres around all EU citizens in the UK having to apply for a rebranded version of the indefinite leave to remain status currently available for non-EU citizens. It was met with near-universal disappointment, as it would result in a de-facto reduction of current rights for EU citizens, such as freedom of movement and the ability to emigrate with a family member.

The offer therefore fundamentally differs from the EU’s desire to see EU citizens continue to enjoy the “same level of protection as in EU law”, or in the words of one senior official – to live “as if Brexit never happened.”

But perhaps the most significant point of conflict stems from Theresa May’s red-line demand that European courts will no longer have jurisdiction over anyone living in the UK, and that the rights of EU citizens will be incorporated into the framework of British law. This is completely antithetical to the EU’s demand that “the Court of Justice of the European Union should have full jurisdiction corresponding to the duration of the protection of citizen’s rights.”

The EU have valid reasons for wanting their citizens to remain in the UK based on their EU treaty rights. If, as the UK government proposed, the rights of EU citizens were enshrined only in UK law and determined only by UK courts, they would be extremely vulnerable to unilateral future changes by the UK parliament.

This stand-off over citizens’ rights demonstrates a conundrum that Labour simply cannot shy away from. However vague and inaccurate some of the referendum promises were, one of the powerful overarching messages of the Leave campaign was “the principle that decisions about the UK should be taken in the UK”.

Labour has consistently proposed a solution which first and foremost guarantees the rights of EU citizens to reside, work and to be treated equally in the countries that they have built their lives. Yet to realise this, Labour must also formulate a mechanism for enforcing these rights which simultaneously respects the referendum’s call for sovereignty whilst bridging the sizeable gap between the UK and EU’s stance on legal jurisdiction.

A solution may, surprisingly, be found by revisiting an under-discussed element of the divisive ‘Norway option’. Whether the UK should seek a similar economic relationship with the EU as the Economic Free Trade Association countries (Iceland, Norway and Lichtenstein), has been a subject of much debate. Yet setting aside economics, the model of international legal arbitration that presides over the relationship may provide a template that will enable the EU and UK to overcome its impasse on citizens’ rights.

The EFTA Court is an international body which interprets and applies laws that govern the relationship between EEA members and the EU. As the judges are appointed by common accord of all participating nations, a similar body governing Britain’s withdrawal from the EU would likely assuage European fears that the rights of its current citizens will be at the mercy of future British legislators. Yet crucially, the EFTA court is comprised solely of judges appointed by the government of the three member countries, and unlike in the EU, there is no supranational panel scrutinising the nominees. Bearing in mind that a degree of sovereignty must inevitably be sacrificed in the legal arbitration of international agreements, an EFTA style judicial arrangement offers a realistic compromise whilst maintaining a high degree of British sovereignty.

Labour has rightly opposed the government’s willingness to leave millions of citizens in the dark regarding the future protection of their rights. But to help guarantee these rights in practice, it must show that it can be more flexible and creative than the red-line approach taken by Theresa May. Advocating for an EFTA-style international body to guard over the rights of citizens may offer the common ground which is desperately needed to move the negotiations forward, and secure the rights of millions living in the UK and Europe.


Joe Duffy is the Campaign Intern for the Labour Campaign for Human Rights.

This article was originally published as part of our dedicated Brexit and Human Rights Campaign.

LCHR’s Response to the Government’s Policy Paper on Citizens’ Rights

Last week saw the first government pronouncement on the impact of Brexit upon citizens’ rights after a year defined by uncertainty for the 3 million EU citizens living in the UK and 1.2 million expats living in Europe. Yet despite the titular promise to finally “safeguard” the rights of these citizens, the proposal falls short in many crucial areas – creating a credibility gap that Labour must be prepared to fill.

The proposed “settled status” system was met with disappointment from negotiators, campaigners and citizens alike, with Michel Barnier calling for “more ambition, clarity and guarantees.” As well as making the cut-off date up for debate, the key difference is that whilst the EU wishes to guarantee the exact continuation of rights for UK citizens, the UK demands the incorporation of both groups into the framework of British law. This would result in a reduction of current rights, such as freedom of movement and the ability to emigrate with a family member.

The decision to intentionally begin negotiations with a proposal significantly under the EU’s offer is guaranteed to extend the protracted anxiety of millions. The fact that those who are most affected could not vote for Brexit, and that 77% of leave voters supported letting EU migrants stay, means that ensuring continued residence is a matter of moral urgency. Gambling with the lives of those who have most to lose from the negotiations is as needless as it is damaging.

Much of the outcry has centred around the proposals’ lack of “detail and clarity” regarding exactly how rights would be protected. The government document is littered with vague language prefixing essential rights, such as the hazy promise to “seek to protect” healthcare rights. It is unclear why the government would wish to leave themselves such legal wriggle room in their “serious and generous offer” to secure the rights of 4 million individuals.

The proposal does have some welcome elements, particularly the commitment to drop the requirement for comprehensive sickness insurance and the indication that applying for settled status will be as “light touch” as possible.

However, this will only form the tip of the bureaucratic mountain of immigration protocol that the Brexit select committee recently labelled as “disproportionately burdensome.” The government must expand on this commitment if they are to shake off the suspicion that their immigration system is designed to deter, rather than to control.

Much of the impasse stems from the mistrust with which Europe sees the UK’s immigration system, which is hardly unwarranted given Theresa May’s creation of a “hostile environment” as Home Secretary, and her government’s pointless, divisive drive towards reducing immigration to the “tens of thousands”. The UK’s particularly harsh spousal migration policy has been at the centre of disputes, as it provides a tangible example of how British law would reduce the rights of EU and UK citizens living abroad.

Following the government’s proposal, Labour has a clear opportunity to become the party of a logical and humane Brexit.

To ensure this, Labour must continue its year-long campaign to unilaterally guarantee the exact continuation of rights for EU citizens, a stance that has been vindicated by the EU’s mirror offer for UK citizens.

Where the government seeks to hide behind technicalities and vague language, Labour must be unequivocal and robust in its assurances of citizens’ rights.

Above all, Labour must escalate its brave commitment to sweeping immigration reform that saw the manifesto promise to scrap the aforementioned spousal migration threshold. By recognising that we are at a moment of national reflection, Labour can maximise its newfound position of strength to push for an immigration system that is universally fit for purpose in a post-Brexit world.

Joe Duffy is the Campaign Intern for the Labour Campaign for Human Rights. 

This article was written as part of our dedicated Brexit and Human Rights Campaign.

Citizens’ Rights and Family Immigration: How the EU negotiations demonstrate the flaws in Britain’s family immigration system.

As we pass the anniversary of the Brexit referendum, this whirlwind year has perhaps been hardest on those whose freedom to stay in their country of residence remains unresolved. The lives, security and futures of the 3 million EU citizens living in the UK, and the 1.2 million British expats living in the EU, have been reduced to one of the “main cards” that the government have regularly implied they are willing to trade away. Theresa May’s decision to begin the negotiations on citizens’ rights with an offer significantly below the EU’s demands is sure to prolong the anxiety of millions.

Yet there is one area in which EU citizens may have a post-Brexit advantage.

In 2012, the then Home Secretary Theresa May introduced a law demanding that any British citizen with a spouse from outside the EU must earn an annual income of £18,600 or above (or £22,400 when including a child) before their partner can come to live with them. It is estimated that the threshold excludes 41% of the British working population whilst disproportionately penalising women. This places an unjust means-test upon the ability to live with loved ones, and implies that the right to a family life is only available to those who can afford it.

A curious effect of the minimum income requirement is that it makes it comparatively easier for EU citizens to bring non-EU family to live with them. In an ongoing court case, an EU legal advisor stated that the Algerian husband of a woman with dual Spanish-British citizenship had the right to join her in the U.K, due to EU rights that protected her prior to her British citizenship. The EU negotiating team have separately demanded that these rights apply to “current and future family members”, even after the divorce or death of the initial right-holder.

It therefore possible that, decades down the line, a descendant from an EU citizen living in the UK could have the truly global access to family life that is denied to the children and grandchildren of non-EU citizens.

Although this is unlikely, the crucial point is that the current dispute over EU citizenship rights has reflected how the failures within our immigration system affect everyone living in Britain.

On Friday the Prime Minister argued that she wanted EU citizens to have the same post-Brexit rights as UK residents, but without the jurisdiction of European courts they would likely be subject to minimum income requirements. When a guarantee of rights has the effect of increasing the number of people at risk of being unjustly denied a life with their family, it is clear that the entire system urgently needs reform.

Labour have repeatedly, and rightly, pledged to unilaterally guarantee the exact continuation of citizenship rights for EU citizens. The manifesto promised to replace income thresholds entirely. This is a very welcome stance.

But can Labour, and all progressives, learn from the protracted ordeal of EU citizens and demand the further reform that is required to place human rights at the centre of our immigration system? Minimum income requirements are just one aspect of the ‘hostile environment’ which Theresa May intentionally created as Home Secretary. If the election taught the left one thing, it is to think big and unapologetically about key issues. The example of EU citizenship rights shows that this approach is desperately needed in order for all British people to have equal access to a family life.

Joe Duffy is the Campaign Intern for the Labour Campaign for Human Rights

This article was written as part of our dedicated Brexit and Human Rights Campaign.