Professor Steve Peers, University of Essex

The EU and the UK have established their negotiating positions for their future relationship, including the UK’s exit from EU regulations (as discussed here). The UK’s position can be found here. Many commentators have analyzed the economic implications of the future relationship. This post focuses on justice and home affairs, including immigration, asylum, civil cooperation, and judicial and police cooperation.

This analysis will objectively critique both sides’ positions. It’s important to clarify that the EU’s negotiating stance does not require the UK to accept the Court of Justice of the European Union (CJEU) jurisdiction for any treaty. The EU has never imposed this requirement on any other non-EU country, and this case is no different.

The EU’s position is that any disputes regarding EU law should be ultimately decided by the CJEU. This stance stems from the CJEU’s own requirements. However, it is possible to structure agreements in a way that avoids situations where the CJEU’s involvement is mandated. This can be achieved by avoiding direct references to EU law and by establishing dispute resolution mechanisms that don’t rely on arbitrators who might consult the CJEU for interpretation. The EU has successfully implemented such arrangements with other non-EU countries in the past. Should the EU harbor any mistrust towards the UK’s compliance, it retains the option to terminate or suspend the treaty.

This analysis serves as an update to a previous post on the potential for a post-Brexit security treaty between the UK and the EU. It considers the latest developments since the previous post. Additionally, it draws upon the House of Lords committee report on a future UK/EU security treaty, for which the author provided advisory support.

It’s worth noting that the withdrawal agreement outlines the specifics of the UK’s disengagement from these matters by the end of the transition period. Future treaties on these issues could potentially lead to amendments to these provisions through the agreement’s Joint Committee (as per Article 164(5)(d), which empowers the Committee to modify the agreement to address unforeseen situations).

The potential for the UK/EU negotiations on economic matters to falter, much like the recent Cats movie, raises the question of a separate treaty addressing this issue. While the UK has explicitly requested this, the EU’s stance remains ambiguous. Whether a breakdown in economic talks would consequently hinder negotiations on separate treaties for political reasons is purely speculative at this point.

For clarity, the EU’s position is presented in italics throughout this post, while the UK’s position is underlined. Commentary is presented in regular text. A traffic light system will illustrate the likelihood of agreement on each point: Green signifies a high probability; Amber suggests it’s possible but complex; Red indicates a low probability.

This post employs a straightforward comparative analysis of the two positions.

Civil cooperation

59. In areas not covered by existing international family law instruments and taking into account the United Kingdom’s intention to accede to the 2007 Hague Maintenance Convention, the Parties should explore options for enhanced judicial cooperation in matrimonial, parental responsibility and other related matters.

64. The UK proposes continuing to work together with the EU in the area of civil judicial cooperation through multilateral precedents set by the Hague Conference on Private International Law and through the UK’s accession as an independent contracting party to the Lugano Convention 2007.

Amber. The Hague Conference represents an international effort to develop treaties, aiming to streamline civil judicial cooperation globally. Both the EU and its Member States hold membership and have signed on to several relevant treaties, including the 2007 Hague Maintenance Convention. The UK plans to ratify this convention by the end of the transition period, as indicated by these declarations. On some civil law matters, the EU has gone a step further than the Hague Conference by enacting more comprehensive legislation on jurisdiction in cross-border disputes, conflict of laws (determining which country’s law applies), and the recognition of judgments across borders. The Lugano Convention mirrors the EU law on civil jurisdiction and judgment recognition as it stood in 2007 (amended in 2012) and extends its application to Norway, Iceland, and Switzerland.

The EU specifically targets family law, proposing specific arrangements, while the UK’s focus remains on the Hague Conference and the Lugano Convention. Joining the Convention involves a specific process outlined in Articles 70 and 72. Non-EU and non-EFTA countries like the UK require unanimous consent from existing Contracting Parties. The EFTA States have expressed their support for the UK’s accession. However, the EU’s position remains to be seen. The current parties are obligated to “endeavor to consent” to the accession request within a year of reaching an agreement. As part of the application, the applicant country, among other things, must provide “information on the appointment and independence of judges.”

It’s important to highlight that the Lugano Convention, while mirroring an EU law text, doesn’t grant the CJEU jurisdiction over the treaty for non-EU signatories. Protocol 2 of the Convention stipulates that parties should “give due account” to each other’s court judgments, including those of the CJEU. While there’s a system in place to discuss differences in interpretation, it lacks a binding dispute settlement mechanism and therefore doesn’t involve arbitrators who might seek the CJEU’s interpretation of EU law. The UK’s intent to join the Convention suggests that this does not clash with its opposition to CJEU jurisdiction, likely because it doesn’t grant jurisdiction to the CJEU or allow for arbitrators to refer questions to the CJEU in case of disputes. Similarly, we can infer that this doesn’t contradict the EU’s position either, given its existing commitment to the Convention.

Furthermore, there is no “dynamic alignment,” meaning there’s no obligation to adapt to changes in EU law. In fact, the 2012 amendment to EU law had no bearing on the Convention, which still reflects the EU law on this matter from 2001.

To facilitate progress, the UK should promptly apply to join the Lugano Convention. Should the EU wish to maintain cooperation on family law matters, it should promptly present a proposal. The most straightforward approach would involve incorporating existing EU law texts into a separate treaty, following the model of the Lugano Convention. As previously explained, the Lugano Convention doesn’t infringe upon the UK’s red lines.

Immigration and asylum

145. The envisaged partnership should envisage cooperation to tackle irregular migration of nationals other than those of the Parties, including its drivers and consequences, whilst recognising both the need to protect the most vulnerable and the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons. This cooperation should cover: a) cooperation with Europol to combat organised immigration crime in line with arrangements for the cooperation with third countries set out in the relevant Union legislation; b) a dialogue on shared objectives and on cooperation, including in third countries and international fora, to tackle irregular migration upstream.

54. The UK has made a specific commitment to seek to negotiate a reciprocal agreement for family reunion of unaccompanied children seeking asylum in either the EU or the UK, with specified family members in the UK or the EU, where this is in the child’s best interests.

55. Beyond this, the UK is open to an agreement regulating asylum and migrant returns between the UK and the EU, or alternatively with individual Member States, underpinned by data sharing, to help counter illegal migration and deter misuse of our asylum systems.

Red. The EU appears interested in operational collaboration, while the UK seeks negotiations on unaccompanied asylum-seeking children and a broader agreement on “asylum and migrant returns,” either with the EU as a whole or individual member states. The CJEU’s stance on whether this falls under EU exclusive competence (preventing member states from entering into treaties with non-EU countries) remains unclear. Although the European Parliament supports the idea of a treaty (para 61 of its resolution on the future relationship), it doesn’t hold negotiating power.

To advance this matter, the UK should put forward a proposal as soon as possible. If the EU shows no interest, the UK should adapt the proposal into a model treaty and present it to individual member states. NGOs focused on asylum issues should advocate for greater interest from the EU.

Some suggest that the EU should only agree to treaties on asylum responsibility with non-EU countries that are part of the Schengen Agreement. However, as discussed further, the “Schengen requirement” isn’t consistently applied by the EU in these negotiations. Prioritizing this arbitrary “rule” over the family unity of vulnerable unaccompanied asylum-seeking children is simply not justifiable.

It’s important to note that existing EU treaties in this field don’t mandate non-EU countries to accept CJEU jurisdiction. For example, the treaty with Norway and Iceland outlines an exchange of case law, political dispute resolution, and the possibility of treaty termination.

56. Mobility arrangements, including on visa-free travel for short-term stays, in the envisaged partnership should be based on non-discrimination between the Union Member States and full reciprocity.

57. The envisaged partnership should aim at setting out conditions for entry and stay for purposes such as research, study, training and youth exchanges.

58. The envisaged partnership should address social security coordination.

60. Any provisions should be without prejudice to the Common Travel Area (CTA) arrangements as they apply between the United Kingdom and Ireland, as referred to in Article 38(2) of the Withdrawal Agreement and in Article 3 of the Protocol on Ireland/Northern Ireland.

17. Social security coordination can remove barriers and support mobility of labour between countries. Arrangements that provide healthcare cover for tourists, short-term business visitors and service providers, that allow workers to rely on contributions made in two or more countries for their state pension access, including uprating principles, and that prevent dual concurrent social security contribution liabilities, could be good for business and support trade. These arrangements could benefit UK nationals and EU citizens travelling or moving between the UK and the EU in future.

18. The UK is ready to work to establish practical, reciprocal provisions on social security coordination. Any agreement should be similar in kind to agreements the UK already has with countries outside the EU and respect the UK’s autonomy to set its own social security rules. These arrangements should support mobility by easing the process for those working across borders, including underpinning the reciprocal arrangements on the temporary entry and stay for business purposes (‘Mode 4’ provisions).

Green (social security, visas, CTA); Red (students etc). Both parties appear open to negotiating a social security treaty. Although the UK doesn’t respond to the EU’s point on visas, its relevance is limited as the EU has already unilaterally waived short-term visitor visa requirements for UK citizens, as discussed here. Similarly, the UK doesn’t address the EU’s points about researchers and students, despite both sides already having their own legislation on the admission of these groups (EU law discussed here). While the UK remains silent on the Common Travel Area, it is addressed in the withdrawal agreement.

Police and criminal law: General

115. With a view to the Union’s security and the safety of its citizens, the Parties should establish a broad, comprehensive and balanced security partnership. This partnership will take into account geographic proximity and evolving threats, including serious international crime, organised crime, terrorism, cyber-attacks, disinformation campaigns, hybrid-threats, the erosion of the rules-based international order and the resurgence of state-based threats.

116. The envisaged partnership should reaffirm the Parties’ commitment to promoting global security, prosperity and effective multilateralism, underpinned by their shared principles, values and interests. The security partnership should comprise law enforcement and judicial cooperation in criminal matters, foreign policy, security and defence, as well as thematic cooperation in areas of common interest.

27. The safety and security of our citizens is the Government’s top priority. The UK already has world leading law enforcement capabilities. At the end of the transition period, we will fully recover our sovereign control over our borders and immigration system, which will further enhance our security capabilities.

28. Against this background, the UK stands ready to discuss an agreement on law enforcement and judicial cooperation in criminal matters, to the extent that this is in both parties’ interests. It should include: arrangements that support data exchange for law enforcement purposes; operational cooperation between law enforcement authorities; and judicial cooperation in criminal matters.

29. The agreement should facilitate police and judicial cooperation between the UK and EU Member States; equip operational partners on both sides with capabilities that help protect the public and bring criminals to justice; and promote the security of all our citizens.

Both sides express strong support for general principles of security and cooperation.

Police and criminal law: Red Lines

117. The security partnership should provide for close law enforcement and judicial cooperation in relation to the prevention, investigation, detection and prosecution of criminal offences, taking into account the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons. The security partnership should ensure reciprocity, preserve the autonomy of the Union’s decision-making and the integrity of its legal order and take account of the fact that a third country cannot enjoy the same rights and benefits as a Member State.

30. This should be a separate agreement with its own appropriate and proportionate governance mechanism. The agreement must not constrain the autonomy of the UK’s legal system in any way. It should not provide any role for the CJEU in resolving UK-EU disputes, which is consistent with the EU’s approach to cooperation with third countries on law enforcement and judicial cooperation in criminal matters, including between the EU and neighbouring non-EU countries on tools such as the Second Generation Schengen Information System (SIS II) and Prüm.

Both parties underscore the significance of their respective legal systems’ “autonomy,” but highlight different “red lines” within that context. For the UK, it’s the rejection of any “role for the CJEU in resolving UK-EU disputes.” (The UK doesn’t and realistically couldn’t object to the CJEU interpreting the treaty from the EU’s perspective, as exemplified in the CJEU judgment on the EU/US extradition treaty, discussed here). The UK government rightly points out that the EU consistently agrees to treaties with non-EU countries on these matters without requiring the CJEU’s jurisdiction in dispute resolution. For examples of such treaties, see the Schengen association agreement with Norway and Iceland (case law review, political dispute resolution, termination if unresolved), and the Prüm agreement with the same countries (case law review, political dispute resolution).

However, the EU hasn’t explicitly demanded CJEU involvement beyond its general position that arbitrators handling disputes involving EU law interpretation must consult the CJEU. But the EU doesn’t specify how it envisions dispute resolution in this specific area. There’s no requirement for arbitrators to always be involved in resolving treaty interpretation disputes, and the EU has never insisted on this in the past.

The EU’s “red line” lies in “taking into account the United Kingdom’s future status of a non-Schengen third country that does not provide for the free movement of persons.” While this accurately reflects the UK’s future status, the EU applies this criterion inconsistently. It objects to the UK’s continued participation in the second-generation Schengen Information System (SIS II) but supports its continued involvement in other EU measures that are either exclusively extended to non-EU Schengen associates or not open to non-EU countries at all.

Police and criminal law: human rights and data protection

118. The envisaged partnership should be underpinned by commitments to respect fundamental rights including adequate protection of personal data, which is a necessary condition for the envisaged cooperation. In this context, the envisaged partnership should provide for automatic termination of the law enforcement cooperation and judicial cooperation in criminal matters if the United Kingdom were to denounce the European Convention of Human Rights (ECHR). It should also provide for automatic suspension if the United Kingdom were to abrogate domestic law giving effect to the ECHR, thus making it impossible for individuals to invoke the rights under the ECHR before the United Kingdom’s courts. The level of ambition of the law enforcement and judicial cooperation envisaged in the security partnership will be dependent on the level of protection of personal data ensured in the United Kingdom. The Commission will work toward an adequacy decision to facilitate such cooperation, if applicable conditions are met. The envisaged partnership should provide for suspension of the law enforcement and judicial cooperation set out in the security partnership, if the adequacy decision is repealed or suspended by the Commission or declared invalid by the Court of Justice of the European Union (CJEU). The security partnership should also provide for judicial guarantees for a fair trial, including procedural rights, e.g. effective access to a lawyer. It should also lay down appropriate grounds for refusal of a request for cooperation, including where such request concerns a person who has been finally convicted or acquitted for the same facts in a Member State or the United Kingdom.

31. Cooperation will be underpinned by the importance attached by the UK and the EU to safeguarding human rights, the rule of law and high standards of data protection. The agreement should not specify how the UK or the EU Member States should protect and enforce human rights and the rule of law within their own autonomous legal systems.

32. The agreement should include a clause that allows either party to suspend or terminate some or all of the agreement. This should enable either the UK or the EU to decide to suspend – in whole or in part – the agreement where it is in the interests of the UK or the EU to do so.

33. In line with precedents for EU third country agreements on law enforcement and judicial cooperation in criminal matters, the agreement should not specify the reasons for invoking any suspension or termination mechanism.

Amber. While both sides express concern about data protection and human rights, they differ on practical implications, although not to an extent that compromises are impossible. The EU seeks to suspend or terminate the treaty on human rights or data protection grounds. In contrast, the UK, while accepting the possibility of suspension or termination, opposes specifying the reasons for invoking these clauses. A potential compromise involves the treaty allowing suspension or termination at either party’s discretion without outlining specific grounds, while the EU, within its own laws, stipulates automatic triggering of these clauses for specific human rights or data protection concerns. This approach could also apply to discrepancies in case law; the UK would find it difficult to object to the EU terminating a treaty on these grounds, having already accepted that either party could do so based on their own reasons.

The UK chooses not to respond to the EU’s implicit concerns about human rights protection within the UK. However, an objective observer might criticize both parties. The concerning attacks on judicial independence in Poland are mirrored by UK politicians and commentators who seem eager to follow suit. The UK establishment, once fancying itself as the Greece to America’s Rome, now aspires to be Poland’s Mini-Me to Dr. Evil.

Data exchange

119. The envisaged partnership should establish arrangements for timely, effective, efficient and reciprocal exchanges between Passenger Information Units of Passenger Name Record (PNR) data and of the results of processing such data stored in respective national PNR processing systems. It should also provide a basis for transfers of PNR data by air carriers to the United Kingdom for the flights between the United Kingdom and a Member State. Such arrangements should comply with the relevant requirements, including those set out in the Opinion 1/15 of the CJEU.

40. The agreement should provide for reciprocal transfers of PNR data to protect the public from serious crime and terrorism.

41. The transfer of Passenger Name Record data from airlines to the UK or EU Member State competent authorities is an important law enforcement capability. It enables law enforcement and security agencies to identify known and otherwise unknown individuals involved in terrorism related activity and serious crime, and track criminal networks from their patterns of travel.

42. The agreement should be based on, and in some respects go beyond, precedents for PNR Agreements between the EU and third countries – most recently, the mandate for the EU-Japan Agreement.

Green. Both parties agree on negotiating passenger name data, with no major conflicts – although the UK’s intention to “go beyond” standard EU treaties remains unclear. As the UK highlights, the EU has a history of concluding treaties with non-EU countries (including non-Schengen countries) on this matter. These treaties don’t impose CJEU jurisdiction on non-EU countries, as exemplified by the EU/US PNR treaty, which utilizes political dispute resolution.

The EU references a 2017 CJEU judgment (discussed here) that criticized the EU/Canada PNR agreement on data protection grounds but didn’t rule out EU agreements with stronger safeguards. Another CJEU challenge, focusing on the EU’s own PNR legislation, is currently pending; this could have implications for the EU’s external treaties on the subject. Since the CJEU rulings are rooted in EU primary law (the EU Charter of Fundamental Rights), the EU can’t simply negotiate away these safeguards.

120. The envisaged partnership should provide for arrangements between the Parties ensuring reciprocal access to data available at the national level on DNA and fingerprints of suspected and convicted individuals as well as vehicle registration data (Prüm).

38. The agreement should provide for the fast and effective exchange of national DNA, fingerprint and vehicle registration data between the UK and individual EU Member States to aid law enforcement agencies in investigating crime and terrorism.

39. The agreement should provide similar capabilities to those currently delivered through the Prüm system, drawing on the precedent for such cooperation between the EU, Norway and Iceland as well as between the EU and Switzerland and Liechtenstein. These precedents include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU.

Green. Both sides are on board with negotiating this specific form of data exchange, with no conflict in their positions. The UK rightly points out that the EU already has agreements with Schengen associates, integrating them into EU legislation regarding this data exchange. This doesn’t involve CJEU jurisdiction for the non-EU countries and relies on political dispute settlement.

121. Without prejudice to the exchange of law enforcement information through Interpol, Europol, bilateral and international agreements, the envisaged partnership should provide for alternatives for simplified, efficient and effective exchanges of existing information and intelligence between the United Kingdom and Member States law enforcement authorities, in so far as is technically and legally possible, and considered necessary and in the Union’s interest. This would include information on wanted and missing persons and objects.

43. The agreement should provide a mechanism for the UK and EU Member States to share and act on real-time data on persons and objects of interest including wanted persons and missing persons. This capability is currently provided by the Second Generation Schengen Information System II (SIS II), making alerts accessible to officers on the border as well as to front-line police officers in the UK.

44. SIS II is used by EU and non-EU Schengen members (Switzerland, Norway, Iceland and Liechtenstein). The UK will continue to use SIS II until the end of 2020.

45. The agreement should provide capabilities similar to those delivered by SIS II, recognising the arrangements established between the EU and non-EU Schengen countries (Switzerland, Norway, Iceland and Liechtenstein). The EU’s agreements with these non-EU Schengen countries include a political dispute resolution mechanism with no jurisdiction in those third countries for the CJEU.

Red. While the UK seeks an arrangement “similar” to SIS II, the EU explicitly rules out the UK’s participation in SIS II. This is not directly stated in the EU’s position but is unequivocally outlined in the Commission’s Q and As. Currently, the UK participates in the criminal and police information exchange aspect of SIS II, not the immigration aspects, as discussed here. Another law, informally known as the " Swedish Framework Decision," focuses on case-specific information exchange, not a database. While both sides are open to negotiating some form of arrangement, the specifics remain unclear.

122. The envisaged partnership should provide for cooperation between the United Kingdom and Europol and Eurojust in line with arrangements for the cooperation with third countries set out in relevant Union legislation.

46. The agreement should provide for cooperation between the UK and Europol to facilitate multilateral cooperation to tackle serious and organised crime and terrorism. The UK is not seeking membership of Europol. Europol already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements.

47. The agreement could go beyond existing precedents given the scale and nature of cooperation between the UK and Europol. For example, the UK was the highest contributor of data to Europol for strategic, thematic and operational analysis in 2018.

49. The agreement should provide for cooperation between the UK and Eurojust. Eurojust is an EU agency which brings together prosecutors, magistrates and law enforcement officers to assist national authorities in investigating and prosecuting serious cross-border criminal cases. The UK is not seeking membership of Eurojust.

50. Eurojust already works closely with a number of non-EU countries, including the US, through dedicated third country arrangements. The agreement should follow these precedents to enable ongoing cooperation between the UK and Eurojust.

Green. Broad agreement exists between the two sides, both acknowledging the existing framework for Europol and Eurojust to collaborate with non-EU countries (already in effect, as noted by the UK). The UK’s goal of exceeding existing precedents with Europol might not be reciprocated by the EU. Cooperation with non-EU countries differs from being a member state. Contrary to the belief that “cooperation with Europol equals CJEU jurisdiction,” there’s no such requirement for non-EU states, as demonstrated in the Europol agreements with the USA.

Criminal justice cooperation

123. The envisaged partnership should establish effective arrangements based on streamlined procedures subject to judicial control and time limits enabling the United Kingdom and Union Member States to surrender suspected and convicted persons efficiently and expeditiously, with the possibilities to waive the requirement of double criminality for certain offences, and to determine the applicability of these arrangements for political offences and to own nationals, including the possibility for the Union to declare, on behalf of any of its Member States, that nationals will not be surrendered, as well as to allow for the possibility to ask for additional guarantees in particular cases.

51. The UK is not seeking to participate in the European Arrest Warrant as part of the future relationship. The agreement should instead provide for fast-track extradition arrangements, based on the EU’s Surrender Agreement with Norway and Iceland which came into force in 2019, but with appropriate further safeguards for individuals beyond those in the European Arrest Warrant.

Amber. Both parties support a fast-track extradition system to replace the European Arrest Warrant, which has only ever been applicable between EU countries. The UK specifically refers to the precedent set by the agreement with Norway and Iceland, which closely resembles the EAW with some exceptions (notably, no CJEU jurisdiction for non-EU countries, exchange of case law, and political dispute resolution). The only other EU extradition treaty is with the USA. The UK seeks “further safeguards,” while the EU refers to “additional guarantees” – similar in principle, but the details are crucial.

Regarding those details, the EU’s position that some Member States might refuse to extradite their own citizens is already reflected in the withdrawal agreement’s transition period and the EU/Norway/Iceland agreement. This stems from established national constitutional rules, not EU retaliation.

This possibility was highlighted before the referendum but was dismissed as fear-mongering. It appears not everyone fully grasped the implications of their vote. The sight of those who championed the UK becoming a non-EU country now expressing dismay at its treatment as such is not a good look.

The EU mentions the potential waiver of “dual criminality” – the extradition principle requiring an act to be a crime in both the requesting and requested states. The EAW waives this for 32 crimes, while the EU/Norway/Iceland treaty makes it optional. The EU/Norway/Iceland treaty largely mirrors the EAW legislation but with several exceptions.

124. To ensure effective and efficient practical cooperation between law enforcement and judicial authorities in criminal matters, the envisaged partnership should facilitate and supplement, where necessary, the application of relevant Council of Europe conventions, including by imposing time limits and providing for standard forms. It should also cover necessary supplementary forms of mutual legal assistance and arrangements appropriate for the United Kingdom future status, including on joint investigation teams and the latest technological advancements, with a view to delivering capabilities that, in so far as is technically and legally possible and considered necessary and in the Union’s interest, approximate those enabled by the Union instruments.

52. The agreement should provide for arrangements delivering fast and effective mutual legal assistance in criminal matters including asset freezing and confiscation. These arrangements should build and improve on those provided by relevant Council of Europe Conventions including the 1959 Council of Europe Convention on Mutual Legal Assistance and its Protocols, for example by providing for streamlined and time limited processes.

Amber. Both sides are willing to enhance the Council of Europe treaties on mutual assistance (cross-border evidence transfer). The EU has negotiated mutual assistance treaties with Norway and Iceland, the USA, and Japan. Internal EU law (the European Investigation Order, discussed here) also aims to replace Council of Europe measures with a fast-track system. However, the specifics remain unclear. While the UK explicitly mentions freezing and confiscation (subject to separate EU and Council of Europe measures), the EU does not. The reverse is true for joint investigation teams.

_125. Supplementing and facilitating the application of