Brexit – Where Do We Stand Now?


08 September 2016
On 23 June 2016 the British electorate voted for the UK to leave the EU. The “British electorate” in this case was not quite as British as one might think: due to the intricacies of the history of the British Empire, not only British citizens but also Irish nationals and Commonwealth nationals had the right to vote - but not EU and EEA nationals (unless they were Irish or had some suitable dual nationality).

One can imagine that if European nationals had been able to vote the figures would have been somewhat different but, be this as it may, the vote was sufficiently decisive. Under the rules made for the referendum a simple majority was enough to determine the result. So, in theory, a single vote would have been enough to determine the UK’s political future - an arresting thought but, in the event, one that was not tested, although the result was fairly narrow (52% to 48%).

So when the results came through it seemed that the UK was definitely on its way out of the EU in due course. But, subsequently, distinguished legal opinion argued that things were not that simple. Distinguished legal opinion took the view that before the UK Government could trigger the part of European law (Article 50 of the Lisbon Treaty) that would begin the process of disengagement from the EU it would need the agreement of the Westminster Parliament. Distinguished legal opinion was joined by distinguished political opinion in the form of, amongst others, ex-Prime Minister Tony Blair and ex-Deputy Prime Minister Michael (Lord) Heseltine).

But the current Prime Minster Theresa May (who, it is worth noting, wanted to UK to remain in the EU, not to leave) has been very clear in her view on this. As she succinctly put it, “Brexit means Brexit”, and as far as she is concerned - and apparently she is fortified by legal advice of her own - the Government can and will at some point in the near future trigger Article 50 and the UK will then be on the route to leaving the EU, possibly at some point in 2019.

One thing about this situation is clear. If the Government does indeed try to trigger Article 50 without the agreement of Parliament it is highly likely that this will challenged in the courts by frustrated Remainers. Remainers are well aware that a large majority of MPs in the House of Commons are in favour of remaining.

And, supposing that there was a vote in Parliament about Brexit, would MPs really have to nerve to overturn the clearly expressed wishes of the electorate? It is very difficult to judge.

So where does this confusing situation leave us? If the issue did come up before the courts what sort of decision are they likely to make? The courts in this country generally do not “do politics”; they shy away from getting involved in issues which are within the sphere of Government political decision-making. But this situation is an unusual one: the decision to leave the EU was made by the electorate, not by the Government. There are no obvious constitutional rules that cover this situation and no constitutional rules that say a decision made in a referendum is legally binding on the Government. If this matter does come before the courts they will, effectively, have to create new law. And, if the issue does ultimately come before Parliament, what decision is Parliament likely to make?

The future is thus uncertain, and we believe that the only sensible course at the moment is to assume that Brexit is going to happen, and to prepare for it. It is important to bear in mind that the timescale for Brexit is going to be long, and it is unlikely to be completed until 2019 or even later. We tend therefore to envisage that the immigration status of EEA nationals in the UK (and the immigration status of Turkish nationals under the Ankara Agreement, which is a European agreement) may be safe for the time being.

But this is no more than an educated guess and we would advise anybody who is thinking of acquiring immigration status under European law to act rather than to delay. If Brexit does happen it is not possible to predict exactly what will happen to European immigration status in the UK over the next couple of years or so, and it will be wise to take no chances.


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