What does Brexit mean for the EU’s Area of Freedom, Security and Justice?

The UK’s cooperation with EU policies in the ‘Area of Freedom, Security and Justice’ (AFSJ) – also denominated as ‘Justice and Home Affairs’ – has followed an arduous and rocky path. When thinking of the consequences of Brexit for UK-EU cooperation, the first and striking message is that the UK was never actually a full participant in these policy domains. Over the last 30 years of European integration and despite often being a key player in EU AFSJ-related negotiations and policy-making, the UK secured the privilege to pick and choose – formally called an ‘opt-out’ – whether or not to implement EU JHA legislative initiatives. This has led to a large degree of fragmentation and differentiation in European cooperation which has put the common nature and coherency of these EU policies at stake.  

The AFSJ consists of a number of constituent elements, the most important of which are Schengen and the abolition of intra-member state border controls, immigration of third-country nationals, the Common European Asylum System (CEAS) and finally criminal justice and police cooperation.[1]

Since its inception in 1985, the UK has never participated in the Schengen Agreement and has maintained its own border controls for the entire period. Indeed in 1999, when the Schengen acquis was incorporated into EU law by the Amsterdam Treaty, the UK sought and obtained an opt-out from all Schengen-related measures. Despite expressing its willingness to do so, the UK does not (at least formally) participate in the activities of Frontex, the European Agency responsible for the Management of Operational Cooperation at the External Borders of the EU Member States, due to its central contribution and role in the development of the Schengen acquis.[2] Thus, there should not be any consequences for the Schengen area of the UK’s withdrawal from the EU, nor should there be any legal consequences for the UK following its withdrawal from the EU as regards the Schengen area.

The UK sought and obtained an opt-out from measures on immigration of third-country nationals when competence for this area was transferred to the EU in 1999.[3] It has opted into a very limited number of procedural measures (format of residence documents)[4] and has remained out of all the substantive Union legislation on conditions for entry and residence, and the definition of rights of third-country nationals residing regularly in the EU. Thus, the UK’s departure from the EU will be of no consequence for the EU in this policy domain. This latter observation, in fact, challenges the message widely spread by the Leave campaign that a vote to leave the EU would bring border and migration control back to the UK. In point of fact, these two competences never left the UK.

The CEAS[5] is one of the few areas where the UK opted into the first round of legislation adopted in 2004, but it declined to opt into the second round adopted in 2013-14, other than the Dublin III Regulation, which allocates responsibility for the care of asylum seekers and the determination of their applications.[6] The withdrawal of the UK from the EU will have important consequences for the CEAS.[7] Assuming no transitional arrangements are agreed to, life will become much simpler for the CEAS as only one set of legislation – the 2013 measures – will apply to all Member States. The UK also did not participate in the decision establishing the EU temporary relocation system from Greece and Italy, adopted in July and September 2015.[8] The continued practice by only one member state of applying the earlier CEAS legislation was an irritant in the system.

Despite the popular conception conveyed by some media and political discourses in the Brexit debate, the UK has not received a substantial proportion of the EU’s asylum seekers compared to other large member states. In 2015, according to Eurostat statistics, the UK received around 38,800 asylum applications out of the total of 1,321,600 applications in the entire EU. As shown in Figure 1, the UK’s share corresponded to 2.9%, which sharply contrasts with the 36% received by Germany (476,510 applications), 13% by Hungary (177,135), 12% by Sweden (162,450), 6.6% by Austria (88,160), 6.3% by Italy (84,085) and 6% by France (75,750 applications).[9]

Cooperation in matters of criminal justice is an area in which the UK had an option to withdraw, which it exercised on 1 December 2014.[10] It then ‘opted back into’ the most important set of criminal justice mutual recognition measures that were part of the old Third Pillar acquis.[11] One of the most relevant measures that the UK has (re-)opted into is the 2002 European Arrest Warrant (EAW), which provides for simplified extradition and surrender procedures among the member states.[12] The UK’s departure from the EAW system, however, will mean that extradition between the UK and the remaining EU member states will become more complex and lengthy. Suspects who are nationals of EU member states but are living in the UK and are sought by other EU countries will have a better chance of avoiding being sent back for prosecution.

The UK has played a very active role in the development of EU policy on police cooperation and access to data for law enforcement purposes. It has had access to the police and criminal justice-related information components held in the second generation of the Schengen Information System (SIS II) since April 2015.[13] It also participates in the Prüm Decisions,[14] under which EU police forces can automatically share DNA, fingerprint and vehicle registration data. The UK has ‘opted into’ the recently adopted EU Passenger Name Record (PNR),[15] which allows for a large systematic collection, use and retention of PNR data on air passengers. The UK is also a member of several EU Agencies, including Europol,[16] thereby providing it with access to the Europol Information System, and Eurojust.[17] Brexit means that the UK will lose access to all these information tools for law enforcement purposes and the support and cooperation in the context of EU JHA agencies’ activities.

The consequences of Brexit

One of the most profound consequences of Brexit will be that, as from ‘the leave date’, all UK citizens will become third-country nationals for the purposes of EU law. They will be deprived of their European citizenship as well as all the rights and freedoms attached to it in the Treaties and secondary legislation. This means that they will fall within the personal scope of the EU and its remaining member states’ immigration legislation setting out the conditions for entry and stay in the Union. The loss of EU citizenship (rights) will potentially affect around 690,000 UK citizens residing in other EU member states. While the majority of these UK citizens reside in Spain, a large number of UK nationals living e.g. in Ireland, Germany, the Netherlands, Italy, Belgium, Sweden and other EU member states are similarly affected by Brexit (see Figure 2 below).[18] This sum stands in marked contrast with the figures of 1.2 to1.3 million commonly cited in the media,[19] many of which rely on data from the UN.[20]

Conversely, the UK will no longer fall within the scope of European citizenship and the corresponding rights and freedoms, potentially affecting many European citizens currently residing in the UK. Based on the data of Eurostat and the UK Office for National Statistics (ONS), there were around 2.9 million European citizens residing in the UK on 1 January 2015. The Eurostat and ONS data further show that Polish, Irish,[21] and Romanian nationals are the top three EU member state nationalities present in the UK.[22] Here as well, the figures commonly referred to (3 to 3.3 million) – based on the UN DESA data – may be misleading.[23]

Plausible options for the UK following Brexit

So what are the most plausible options for a way forward? The option of joining Iceland, Liechtenstein and Norway in the European Economic Area (EEA) Agreement would not be appealing to the UK in this case. The EEA Agreement is faithful to the EU’s internal market objective and includes as a core principle the free movement of persons among the parties.[24] However, it is unlikely that the Leave proponents will be able to sell the EEA model in light of the promises they made in the campaign. The Annex (see PDF version) to this commentary provides a detailed overview of the state of play of EEA countries’ participation in the most relevant JHA-related policy areas. As shown, the EEA includes free movement of workers ‘in full’, with no exceptions, ‘safeguard clauses’ or immigration caps.

Accession to the Swiss agreements with special arrangements on finance and an ‘immigration cap’ could be considered more palatable.[25] The Swiss route might be more attractive, as the Swiss did not accept the EEA Agreement, but instead negotiated a series of bilateral agreements with the EU, one of which relates to free movement of persons (Agreement on the Free Movement of Persons, AFMP).^[26] The Annex shows that this Agreement foresaw various protection clauses to the Swiss labour market until 2014, which limited the issuing of residence permits to nationals of the EU15 and EU8 to a restricted number of quotas (15,000 new residence permits valid for one year and 115,500 valid for less than one year).

As the EU institutions made clear during the controversy with the Swiss over the introduction of a permanent ‘immigration quota’ for EU citizens following the referendum of February 2014,[27] the EU-Swiss arrangement is based on the principle that participation in the internal market goes hand-in-hand with (and is indivisible from) its four freedoms, including the free movement of persons and workers. Indeed, even in cases where there is proof of “serious economic or social difficulties”, the EU-Switzerland Agreement on the Free Movement of Persons (AFMP) foresees that the scope and duration of any limitations on free movement of persons “shall not exceed that which is strictly necessary to remedy the situation”. A temporary migration cap similar to the EU-Swiss model could therefore be a possibility for a renewed EU-UK framework of cooperation, as long as the intrinsic link between access to the internal market and the four freedoms would not be broken.

What is clear is that the current Brexit environment has led to a very high degree of legal uncertainty and insecurity for all EU citizens currently living and working in the UK, as well as for UK nationals who have exercised their Union citizenship rights and live elsewhere in the EU. The UK-EU Agreements to be negotiated during the procedures envisaged in Art. 50 of the Treaty on the Functioning of the European Union (TFEU) should pay special attention to mitigating the adverse effects of the ‘Leave’ decision for the individuals affected.

A key priority should be to explore specific legal arrangements to secure ‘acquired residence rights’ by EU citizens living in the UK and UK nationals living elsewhere in the EU. A clear signal of the current state of legal insecurity has been the reported increase in applications by British nationals for Irish passports,[28] as well as for Belgian nationality.[29] The situation presents the EU with an opportunity to clearly demonstrate the high value of European citizenship if UK nationals living in other member states can be assured that they will not lose their EU citizenship rights but rather that those rights will be ‘frozen’ on the day the UK formally ‘leaves’ the Union.[30]

Sergio Carrera is Senior Research Fellow and Head of Justice and Home Affairs at CEPS; Associate Professor at Maastricht University and Honorary Professor at Queen Mary University London. Elspeth Guild is Senior Associate Research Fellow, CEPS; Jean Monnet Professor ad personam of European immigration law, Radboud University Nijmegen and Queen Mary, University of London. Ngo Chun Luk is TRANSMIC Research Assistant at CEPS.

CEPS Commentaries offer concise, policy-oriented insights into topical issues in European affairs. The views expressed are attributable only to the author in a personal capacity and not to any institution with which he is associated.

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