By Steve Peers
While much of the debate about the UK’s membership focusses upon the 2.3 million citizens of other EU countries living in the UK, a nearly identical number of UK citizens live in other Member States. There has been surprisingly little discussion about what would happen to them if the UK left the EU. ‘Europe Day’ is a suitable occasion to look at this issue in more detail.
Essentially, there are three different scenarios following withdrawal, as far as the movement of people between the UK and the remaining EU is concerned.
In the first scenario, the UK retains its membership in the European Economic Area (EEA), an existing treaty which extends much of the EU’s single market, and some related policies, to Norway, Iceland and Liechtenstein. This would mean that all the existing rules on the free movement of people continue to apply.
But is this politically realistic? The opponents of UK membership of the EU traditionally based their arguments on issues of cost and sovereignty. These arguments have not disappeared, but they have been joined by a third main argument: immigration control. The EEA does allow its members to adopt safeguard measures if there are ‘serious economic, societal or environmental difficulties of a sectorial or regional nature’ which are ‘liable to persist’, but these measures must be ‘restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation’. It is questionable whether these limited possibilities would be sufficient to satisfy those who are concerned about the numbers of people in the UK from the rest of (or rather, the remaining) European Union.
In the second scenario, the UK and the EU negotiate an ad hoc solution regulating the movement of persons, which falls short of the EEA rules but which contains some special rules which facilitate the movement of persons to some degree. But it’s impossible to know at this point whether such an agreement would be signed, and what its content would be. So it’s not possible to analyse this possibility in any detail.
The third scenario is that there’s no agreement between the UK and EU on this issue, and so only the national law of the UK on the one hand, and the EU and its Member States on the other hand, regulates the issue. It’s possible that the second and third scenarios could be combined in some way. For instance, there could be a treaty which focuses entirely, or mostly, upon protecting the rights of those persons who moved before the UK’s withdrawal, leaving the issue of migration after the withdrawal date to be governed by national law (and partly by EU law, for the remaining Member States).
We have a good idea what this third scenario would entail, for those UK citizens who live (or would like to live) in the remaining EU. That’s because there is already a significant body of EU immigration law. Since the UK has opted out of most of it, this law hasn’t attracted much attention in the UK, but it would be hugely relevant to UK citizens in the remaining EU in the event of the third scenario. There’s also a body of EU asylum law, and if UK citizens were non-EU citizens (third-country nationals), they could apply for asylum in the EU (and vice versa). But (for now at least) this prospect seems improbable.
This analysis will therefore look in turn at the impact of applying three other main areas of law to UK citizens: border and visa law; legal migration law; and the law on ‘illegal’ (ie, irregular) migration.
EU law on borders and visas
UK citizens already have to cross the ‘Schengen’ border when they visit other most other Member States (Ireland does not have to join the Schengen rules, and Romania, Bulgaria, Cyprus and Croatia have not done so yet). However, the checks on UK citizens currently co-exist with EU free movement law, meaning that the checks can only be cursory, in order to verify British citizens’ identity and nationality at Schengen borders.
Following a UK withdrawal from the EU, the borders rules alone would apply, meaning that there will be more intrusive questions about the purpose of each British citizen’s visit, and checks on the intention to return and level of income.
As for visas, the EU would be free to impose visa requirements on UK citizens in the event of withdrawal. While the EU tends not to impose visa requirements on wealthy countries, it does expect such countries (such as the USA and Canada) in return to exempt all EU citizens from a visa. So if the UK wished to impose visas (for instance) on Romanians and Bulgarians, it would face pressure from the EU to waive such requirements – or face the imposition of a visa requirement for UK citizens. Even if there is no visa requirement for UK citizens visiting the EU, they would in future be subject to the EU’s planned entry-exit system, which will keep a record of all movements of third-country nationals into and out of EU territory.
Those UK citizens who were long-term residents in a Member State (legal residence for more than five years) could apply for long-term resident status under EU law. But as compared to obtaining permanent residence status as an EU citizen, there are more conditions attached to obtaining such status, and fewer benefits. For instance, according to EU immigration law, a long-term resident of a Member State can move to another Member State, but this is subject to much stricter rules than those applying to EU citizens. Also, British citizens would often be subject to ‘integration’ rules, such a requirement to speak the language of the host country, before getting such status. For British pensioners living in the EU, the EU rules which guarantee the receipt (and upgrading) of their British pensions would no longer apply.
Similarly, UK citizens in a Member State who wanted their family members to join them (if those family members were British, or nationals of another third country) would be subject to far stricter family reunion rules than they are now, including possible waiting periods and integration (language) requirements. Those UK citizens who were family members of an EU citizen living in his or her own Member State (ie, a German citizen living in Germany) would be subject to national law only, which is sometimes even stricter (in the Netherlands, for instance). Only those UK citizens who are family members of an EU citizen who has exercised free movement rights (a French citizen in Germany, for instance) would still be able to rely (only indirectly) on EU free movement law.
As for UK citizens who wished to move to, or remain in, an EU Member State, but who do not yet have long-term resident status, they would be subject to possible quotas and EU-preference rules on labour migration. Highly-skilled British professionals could not simply move to another Member State and take up work, but would have to apply for a Blue Card as provided for in EU law, or qualify as an intra-corporate transferee, both possibilities subject to more restrictive rules than for EU citizens. Less skilled workers and self-employed British citizens would be subject entirely to restrictive national laws on their admission (although they would have some limited equality rights under the single permit Directive), unless they were seasonal workers, in which case their residence would be subject to a strict time limit.
In principle, according to the EU’s Returns Directive, British citizens who did not, or no longer, had a right to stay in the EU would have to be expelled from the territory, by force if they did not go voluntarily. To facilitate their departure, they could be detained for up to six months, or up to 18 months if there were complications with their removal.
Various other restrictive EU laws would also apply to UK citizens in the EU. So there would be sanctions against employers of irregular British migrants, as well as prosecution of those friends or family who assisted with their unauthorised stay. In accordance with the Returns Directive, most irregular British migrants to the EU would be subject to an entry ban, with their names listed on the Schengen Information System to ensure that no EU Member State lets them back in for up to five years.
Usually, patriots and nationalists are concerned about the plight of their fellow citizens living abroad. One might think this would be particularly the case in the UK, given the large number of British citizens living abroad due to the current forces of globalisation – never mind the country’s colonialist past. Yet it seems more likely that British expatriates in the EU will be, in effect, the eggs that have to be broken to make the omelettes of those British politicians who feel uncomfortable living next to Romanians.
The negative consequences of UK withdrawal from the EU for British expatriates could be avoided, if the UK government of the time were willing to treat EU citizens who were living in (or wanted to come to) the UK generously.
But as noted already, this prospect looks unlikely. It is undoubtedly possible in theory to make a rational and reasonable argument for the UK’s withdrawal from the European Union (although there are, of course, counter-arguments for staying in). But in recent years, the argument for withdrawal has become increasingly linked with a degree of distaste for, if not loathing of, the citizens of other Member States living in the UK (to say nothing of other expressions of racism, sexism and homophobia).
If it left the EU, the UK would be free to give expression to these views, but there would be consequences for British expatriates remaining in the EU. The corollary of hearing fewer foreign languages spoken on British trains is that English would be spoken less often in European trains. Taking into account restrictive EU rules on family reunion, access to employment and benefits and detention of third-country nationals, the immigration status of a growing number of British citizens in the EU would be, in Hobbes’ words, solitary, poor, nasty, brutish and short.
(See also the post on what would happen to EU citizens in the UK after 'Brexit').
Barnard & Peers: chapter 2, chapter 13, chapter 26