Fundamental of EU citizens in the UK must not be used as a "bargaining chip" in the negotiations to leave the European Union, according to the report of a parliamentary committee published today.

In The human rights implications of Brexit, Westminster's Joint Committee on Human Rights calls on the UK Government to give an undertaking to protect the residency rights of EU nationals in the UK.

It says the actual position of such individuals is underpinned by the Human Rights Act and will depend on length of residence and other factors, but Government intentions for both UK and EU citizens remain far from clear. 

While the Government has indicated its willingness to accept that the estimated 2.9m EU nationals currently in the UK should be allowed to remain, it wants to tie any agreement to an acceptance by the other EU member states of the rights of UK nationals living elsewhere in the EU. 

Minister for Human Rights Sir Oliver Heald told the committee that the Prime Minister was seeking an "early agreement" covering both groups, and that the Government’s view was that to agree a unilateral position on the issue would not be helpful.

In its report the committee comments that while many fundamental rights are underpinned by EU law, it is not clear whether the Government intends to remove any rights UK citizens currently possess under EU law – and, if so, which rights are under threat. It demands that any future legislation should include safeguards and that Parliament should have the opportunity to debate, amend and vote on any proposed changes to fundamental rights.

Even though rights under the European Convention are not absolute, it would not be possible for the Government to establish a rule that would allow the deportation of EU nationals merely on the grounds that they had only been resident for a fixed period of time. Other factors such as family connections and the residence rights of children would be relevant, and each case would need to be considered on its own facts.

The committee recommends that:

  • the Government should set out a full and detailed list of fundamental rights currently guaranteed by virtue of the UK’s EU membership and what approach it intends to take towards them;
  • there should be no opportunity for the Government to repeal fundamental rights by secondary legislation for reasons of expediency: any proposed changes should be subject to debate and vote in both Houses;
  • the Government should issue detailed statutory guidance on the status of existing case law, and determine how it will approach the status of future EU law and Court of Justice of the European Union decisions to ensure that it is not isolated from developments emanating from the EU.

The question of how fundamental rights will be enforced going forward will also be of central importance.

Regarding trade agreements, the committee notes that the EU has included human rights clauses in trade agreements for many years, and recommends that when the UK starts entering into its own trade agreements with other states, the Government should, at the very least, ensure that standards included in current agreements are maintained.

Committee chair Harriet Harman MP said: "The Government must not use human rights as a bargaining chip. Moreover, the Government will continue to have obligations under article 8 of the European Convention on Human Rights, as we set out in our report. The UK Government could not deport the large numbers of EU nationals currently in the UK."

She added: "In the unlikely and unwelcome event that the Government sought to deport EU nationals there could be the potential for significant, expensive and lengthy litigation leading to considerable legal uncertainty for a prolonged period of time. These cases would have the potential to clog up and overwhelm the court system."

Click here to access the report in summary or full version.