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Disregarding for a moment the political and economical repercussions of a Hard Brexit...

What are the immediate legal repercussions of a Hard Brexit, from a stand-point of rights and obligations of legal entities (individuals or otherwise), prior to further modifications of the laws?

My very basic understanding based on 3 years of hearing about it are:

  1. UK laws derived from EU law continue to prevail until modified

  2. Other country's local EU-derived laws will likewise prevail until modified, however, as currently written, those laws will immediately cease to recognize the UK as an EU member

  3. Because of #1 and #2, there are some asymmetries in outcome. For example: Tariffs on imported (EU to UK) goods stay the same, because the local tariffs prevail until modified by new laws (#1); Tariffs on exported (UK to EU) goods immediately increase, because EU countries' local laws immediately recognize the UK as a non-member state (#2).

  4. UK citizens abroad in an EU country may lose the right to be there, and essentially become instant illegal aliens (using a U.S. term), because of #2, unless they obtain a visa like any other non-member citizen

  5. UK non-citizen residents who are EU citizens may continue to reside legally in the UK, because local UK laws derived from EU law continue to prevail until modified (as per #1).

  6. Likewise for corporations ability to do business; in parallel with #4 and #5: Non-UK corporations doing business in the UK will be able to continue to do so, while UK corporations doing business in EU countries would now need comply with "non-member rules," similar to American or Japanese companies. But what specific rights to UK companies enjoy today relative to their American or Japanese competitors when operating in the EU?

  7. The legal status of the Irish border will be what was negotiated in the 1997 Good Friday agreement, which is of an open border, even as individuals become liable for visas and tariffs when crossing (which no one will enforce, but still legally required).

Is this analysis correct, as it relates to the asymmetry of legal outcomes?

What other rights and obligations are directly impactful to any legal entities?

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  • If there is a sense in which inter-national laws are separate from politics and economics (doubtful), it does not apply to something as charged as Brexit. For example, one German minister has said that the EU will insist on a hard Irish border, even against the wishes of both countries. I don't know if that's true, but it won't depend on judges interpreting laws.
    – Tim Lymington
    Sep 8, 2019 at 21:53
  • This question assumes that the UK won't start changing its laws until after Brexit, but it has already started changing them so the changes can take effect as soon after Brexit as possible. There isn't going to be much in the way of asymmetry.
    – phoog
    Sep 12, 2019 at 14:58
  • Also, the legal status of the Irish border is hardly discussed at all in the Good Friday Agreement. There have never been immigration controls on that border, and customs controls were removed several years before the GFA (in 1993, if I recall correctly, when that happened throughout the EU). The infrastructure that was removed with the GFA was military-style security checkpoints.
    – phoog
    Sep 12, 2019 at 14:58
  • British and Irish citizens will continue to have the right to live in each other's countries after the UK leaves the EU, just as they had that right before it and Ireland joined. Laws have already been modified to reflect that. And the problem of people needing a visa in one country but not the other already exists today, since they do not have a Schengen-like unified visa system. There will be far more such people actually traveling to the UK or Ireland after Brexit, but I doubt it will result in immigration controls on the land border.
    – phoog
    Sep 12, 2019 at 15:03

1 Answer 1

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An attempted summary based on the given points:

  • 1) and 2) are correct
    • some of the EU specific laws have also been transferred into UK law, which can be changed at any time after Brexit
  • 3) is not correct since no tarifs existed beween the UK and other EU countries (Common Market / Customs Area)
    • EU trade selectors will apply to the UK as a third country
    • UK will/have create trade selectors that will apply for goods from all countries to the UK
  • 4) will apply to new residence permit applications of UK citizens
    • existing UK residents will, in most cases, received a residence permit based on their previous time of residence
      • will vary from country to country (I haven't seen a summery of the differences)
  • 5) I believe is not quite correct, since UK laws have been passed to 'transfer' residence and working rights into 3rd country residents rights
  • 6) For UK companies, inside and outside the EU, including their employees they will be treated as 3rd countries as stated
    • a few exceptions exist for the next 6 months
    • For EU companies in UK: no idea
  • 7) is not correct for individuals
    • the regulations of the Common Travel Area will remain in effect, so there will be no changes for British and Irish citizens
    • both sides, to be WTO and GATT complient, should inforce custom tarifs
      • certain exceptions, for which the N. Irland situation is believed to be eligible, are possible
        • but this aspect has been ignored upto now

Obligations:

When the UK leaves the Common Market, i. e. Single Custom Area

  • both will be obliged to refund collected VAT when goods are exported outside their Customs Area
  • both will collect the VAT when goods are imported
  • both must supply the infrastructure to make this possible
    • this will remain so independent of any WTO or Free Trade Deal constilation
  • both must treat each other in the same way as any other 3rd country as long as trade is based on WTO rules (inforcement of tarifs)
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  • Re: #4 I recently (in the last couple of days) read a statement that all EU countries have made legal provisions for the continued lawful residence of citizens of the UK who live there when the UK leaves, so that seems to be correct. As to #5, the plan is to repeal the UK "immigration (EEA) regulations" (implementing the free movement directive) at some point after Brexit day (the exact point depends on the withdrawal agreement or lack thereof). In the meanwhile, the more general "immigration rules" have already been modified to make provisions for people to stay ...
    – phoog
    Sep 12, 2019 at 14:50
  • ...by way of the "settled status" scheme, and people are already registering for that scheme. So to say that #5 is "not quite correct" perhaps overstates the degree of wrongness. It's true that local laws will prevail until modified (after Brexit), and it's also true that the modifications allow most people to remain (there are some corner cases, however, involving low-level convictions, and rights to bring family members are being limited).
    – phoog
    Sep 12, 2019 at 14:54
  • @phoog I am not even sure that the 'settled status' program was created by law changes, but more on implementation of existing Home office instructions on existing Alien laws for a new group of persons. It is all a bit foggy.
    – Mark Johnson
    Sep 12, 2019 at 20:37
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    It definitely was created by changes. Appendix EU was added to the Immigration Rules effective 28 August 2018. The Immigration Rules have a unique constitutional status, but it seems that the courts have found that they do constitute law rather than policy.
    – phoog
    Sep 12, 2019 at 20:55

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