Article 70 of the Vienna Convention

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
8 August 2016

Any withdrawal agreement from the European Union may seek to cover the position of UK citizens living in the EU and the EU citizens living in the UK. The key issues will be whether they will retain their residence rights and their status currently derived from EU law. Will they be in the same position as other third country nationals under national immigration law? There will of course be the question of the future position of those EU citizens resident in the UK for instance if they marry a non-EU citizen in future; They retire from work or otherwise change their status; They enter university in future or they do not yet have permanent residence under EU law.

Article 70 of the Vienna Convention on the law of Treaties guarantee “acquired rights” of individuals in the event of termination of a treaty. However, since there has never been an Article 50 withdrawal from the EU, we don’t know how that will be applied in the context of the referendum. Some scholars think Article 70 will be of limited utility. Some think that minimum protection must stem from ECHR. It is not clear whether Article 70 applies to something like Immigration Status or whether it only protects people who have already acquired a permanent residence status as of 23rd June 2016.

In the absence of a deal on free movement the UK citizens will no longer be fast tracked when they cross the EU external borders and EU citizens will not be fast tracked when they visit the UK. In other words the UK citizens will have to get a Schengen visa for free movement within the Schengen space, albeit only for three months. It seems unlikely that Schengen states will place the UK on the same list of countries whose nationals require Schengen visas.

What should EA nationals do now?

We advise our clients to take steps and to try to mitigate against the possible effects of Brexit. We advise our clients to apply for residence cards or a document certifying permanent residence in the UK. We tell our clients that these documents are not compulsory for EA nationals living and working in the UK as they simply confirm rights already held by the EA national. However, having this card helps the EA national to prove that he or she is exercising their free movement rights in the UK before any withdrawal from the union. We are being asked what will happen once the UK actually leaves the European Union? Will there be transitional arrangements protecting the EA nationals already living and working in the UK at the time that the withdrawal takes place?

Following the Greenland example, a country that left the European community in 1985 after a national referendum, we can say that transitional provisions were negotiated to allow EA nationals living and working in Greenland to continue to benefit from free movement. Of course we also advise our EA nationals who have lived in the UK for over five years to consider naturalising as British citizens.