Manjit Gill, Brexit & Zambrano Carers

Meanwhile, Manjit Gill QC, representing expats including children, said his clients faced being deported as a result of Brexit. Without safeguards, he said, European Economic Area (EEA) nationals could be told "to pack your bags and go" when the UK withdraws from Europe. He said the Government's approach "drives a coach and horses" through the rights of those who have lawfully settled in the UK.

Manjit Gill QC (‘MG’)

MG said hard cases make bad law but this was not a hard case. He said if the rule of law means anything then the sovereign must be bound by it.

He had three points:

The first was that the use of the prerogative is not abstract but would have very real effects on family members and carers of EU nationals, who have what are called Zambrano rights. This would breach the non-dispensing principle. On the day of exit, many of MG’s clients would have to leave the country. MG said that JE’s assurances were not enough and the Government could throw out people the day after notification if there was an immediate treaty agreement. MG also said that some of his clients could be exposed to criminal liability as a result of the trigger. This has never been disputed by JE. MG took the court through the relevant legislation saying the on the day of exit, clients without right to remain would be committing a criminal offence. He said it would breach the Case of Proclamations for the executive to have the power to impose criminal offences in this way. MG argued that this would be a good point even if Lord Pannick’s (‘LP’) arguments were all rejected.

The second point made by MG was that this would also affect children. Lord Neuberger suggested it was a bit like FBU.

The third point was the flexible construction point. MG said this was a red herring. He said it was a fundamental principle and there was no need to struggle to make the constitution flexible. MG said trying to make the 2015 Act flexible was a ‘novel and far-reaching proposition’. He also said it was outlandish and involved reading in words that were not there.

Representing the rights of families and children in the case, barrister Manjit Gill told the court Brexit may infringe the rights of non-EU nationals who are carers or guardians of British children or disabled people through uncertainty over whether they would be allowed to stay in the UK.

He said triggering Article 50 under current plans could contravene duties which the Government has to “British citizens, in particular children or the disabled, whose continued presence in this country is dependent on others who themselves are only permitted to reside because of the statutory rights derived from EU law.”

Mr Gill said the Government has thus far failed to address the issue of Zambrano carers case law which means that non-EU nationals who are the cares or guardians of British children are entitled to remain in the UK.

He warned: “As things stand at the moment, there is no mechanism in place to give them that leave [to remain in the UK]. They will therefore be subject, be committing criminal offences [by staying with children] and be liable to summary removal on the day that we leave the EU.”

Therefore, non-EU nationals wishing to stay in the UK after Brexit to look after or care for a child with British citizenship could find themselves committing a criminal offence. “We say that the giving of the Article 50 notice sets in train events which… will expose that affected class at a definable future point in time to criminal liability, and also liability to removal. The executive has no legal power, whether by the use of the prerogative or otherwise, either to create a new criminal offence or to expose… a class of persons to liability for an existing criminal offence at an ascertainable future point in time, to which they are not currently subject.”