All of life is changed: The impact of Brexit on UK nationals living in other EU Member States

Sarah McCloskey and Tamara Hervey, Sheffield Law School

After a series of cataclysmic political events, most people can empathise with the stress and anxiety born out of the subsequent uncertainty. At this time, the people who are enduring the greatest burden are those who have enjoyed a right to free movement exercised in good faith without concern that it might be taken away. Such is Brexit: the source of frustration, a nuisance of the daily news to many, but for EU citizens in the UK and UK nationals living in other Member States, it holds the potential to fundamentally change their very way of life. Without for a moment disregarding the (moral and economic) significance of the former group, we focus here on the latter.

What do the UK government’s proposals mean for UK nationals in the EU-27? What does it mean for their “right to remain, healthcare arrangements under the EU social security agreements, and pension entitlements and payments”? As Strumia highlights, the UK’s offer focuses on EU citizens in the UK. But in a negotiation, the offers made on one side have implications for those on the other. We seek to deduce from the UK’s negotiating position what it might mean for UK nationals in the EU-27.

UK’s Negotiating Position

Despite the hopes for "a magnanimous gesture on the part of the Prime Minister,” the UK government has maintained its stance that a unilateral offer to EU-27 nationals resident in the UK on ‘Brexit Day’ would compromise its negotiating position. Thus, its proposal is founded on the condition of reciprocity. Of course, we remain uncertain as to the outcome of the negotiations. Nevertheless, we can consider the extent to which the UK’s position is a “fair and serious” offer (as the UK government has portrayed) by comparison with the EU’s prior counterpart proposal.

According to the UK negotiating position, upon the UK's exit from the EU, EU citizens in the UK will be required to apply for a new residence status within a grace period of two years. Despite promises of a “streamlined” procedure with incurred fees set at a “reasonable level”, the proposal has faced criticism for subjecting even those who have already obtained a certificate of permanent residence to this new application process. Reciprocity on these terms would dictate that UK nationals in the EU-27 must therefore expect analogous treatment under their post-Brexit status of “third country nationals” (TCNs). They would need to apply for a new residence status under the immigration law of the EU Member State in which they reside. And again, if reciprocity applies, while those who arrive before the yet-to-be-specified date will be granted a temporary status that allows them the opportunity to accrue the vital 5 years of residence, those who arrive at any time thereafter will have no such protection or special treatment. Instead, they would be subject to ordinary immigration law.

Further, any disputes would have to be settled through national courts in the EU-27 country, without any recourse to a supranational authority (such as the CJEU) for a definitive settlement. It would be significantly more difficult to enforce residence and other rights than it is at present.

Under the UK negotiating position, those EU nationals who are successful will be granted what is referred to as "settled status" in UK law pursuant to the Immigration Act 1971. This is subject to certain criteria, including that the applicant must have been resident in the UK before an (as yet un-) specified date (that will fall between 29 March 2017, when the Article 50 letter was sent, and Brexit Day) and have completed a period of 5 years’ continuous residence. It is worth noting here that the UK government has not outlined its definition of “continuous residence” and, given the Prime Minister’s hostility towards the CJEU, it cannot be presumed that it mirrors that accepted in EU law.

Again, if applied reciprocally, UK nationals currently resident in the EU-27 (as EU-27 nationals currently resident in the UK) would be potentially precluded from relying on the benefits of free movement to visit family or for work-related events, for example, in case such visits interrupt their period of continuous residence for longer than permitted under the relevant law. Further, as Strumia notes, this means that the UK’s present protection of free movement is meaningless for EU citizens living in the UK, as any such exercise could be to the detriment of their post-Brexit application.  Like so many other issues, the devil is in the detail and thus, it remains to be seen just how “smooth and simple” acquiring these new rights will be.

Turning to the more specific issues of pensions, child benefits, education, and healthcare, the UK’s negotiating position offers a little more information. On pensions, the UK’s position is explicit that ‘the UK will continue to export and uprate the UK State Pension within the EU’. Given that 21% of UK nationals in EU-27 countries are over the age of 65, this is a significant commitment. Likewise, the current position on child benefit continues: individuals resident before Brexit Day will be able to export any child benefit to which they are entitled in their country of residence, which is of great importance for divorced and separated families. On education, the right of UK students to remain in the respective EU-27 country applies up until course completion (and not beyond) and those with residence rights have the same access to tuition fees and any maintenance grants as nationals of the host country.

Healthcare, however, poses more complexities. The UK government has proposed a new arrangement ‘akin to the EHIC scheme’ (i.e. the European Health Insurance Card, which currently entitles those covered by their home health care system like the NHS to medical treatment in another EU country).  There are non-EU states incorporated within the EHIC scheme, so in theory the UK could join post-Brexit. But in practice, free movement rights will have to be included. Otherwise, the technical and administrative logistics, outside of the current arrangements for coordination of social security, may prove insuperable. The EU coordination of social security is a rules-based system: it is not a matter of politically negotiated bespoke arrangements. A reciprocal deal (to be part of the rules-based system) may be feasible. Access to health care outside such a system (without free movement, without the possibility of CJEU oversight) is unlikely to be so. If that is so, in principle a reciprocal deal would leave UK nationals resident in the EU to fall back on national law to determine their health care entitlements.

The UK’s negotiating position does not explicitly address a host of other practicalities for UK nationals resident in the EU-27 (and vice versa): equal access to housing; equal tax benefits; entitlement to move to and reside in other EU Member States; and equal entitlements to union membership. This is far from offering the claimed reassurance in the face of uncertainty.

In the absence of such details, the only guiding light is: "After we leave the EU, the UK will no longer be subject to EU law. Free movement rights will come to an end and therefore cannot be carried forward, as an EU legal right, into the post-exit UK legal regime.”

If this is the default, and reciprocity is the basis for future entitlements, the effects for UK nationals in the EU-27 would be to face the same prospect of rights reduction as their EU citizen counterparts in the UK.

Applicable EU law

However, this analysis on the basis of reciprocity ignores the fact that the EU itself already has rules concerning the treatment of non-EU TCNs resident in its Member States. The UK’s rejection of an ‘acquired rights’ approach or, indeed, a bespoke proposal of any kind marks an intention to simply align the status of EU nationals with UK immigration law, with all the procedural and substantive implications that entails. But that approach is not available to the EU-25 (Ireland and Denmark have opted out of this law), who are bound by EU law on non-EU migrants, in particular by the EU’s Long-Term Residence (LTR) Directive. The LTR Directive brings the position of UK nationals resident in the EU-25 within EU law as it provides legal protection to some TCNs. This is a Directive that can be - and has been - enforced before national courts, and is subject to the jurisdiction of the CJEU. (There is also some EU legislation on the position of non-EU citizens who don’t yet qualify for LTR status).

Articles 7 and 8 of the LTR Directive govern the scheme by which long-term resident status is acquired and the residence permit granted. The LTR Directive holds the process to a certain standard, imposes common criteria, requires the grant of LTR status where conditions are satisfied (Article 7 (3), Iida para 39), and guarantees certain rights where applications are successful. Article 7(2), for example, requires applications to be processed within 6 months, and Article 10 states that reasons must be given for decisions.

Subject to certain conditions (outlined below), the Directive confers equal treatment of TCNs to nationals in the host country in numerous areas. These include: access to employment; self-employment; recognition of qualifications; tax benefits; and pensions. The UK’s negotiating position, inasmuch as it fails to offer these matters on a reciprocal basis, appears to assume that this aspect of EU law does not exist.

The entitlements under the LTR Directive (and possibly parallel national laws on long-term residence) are extensive. Assuming that it would be the applicable law if the UK’s proposals were to succeed, or indeed if the UK were to leave the EU without successfully negotiating a withdrawal agreement, this raises a question. The position of UK nationals in the EU-27 would obviously be better if the EU proposal prevailed (particularly for those who do not have long-term residence yet). But how much worse off would UK nationals in the EU-25 be under the UK proposals as compared to the EU’s offer? (The position of UK nationals in Ireland will presumably be a special case because of the common travel area; UK nationals in Denmark would have to rely on Danish law.)

Comparison of EU Proposal and EU Law Position: Long-Term Residence Directive

The EU proposal seeks to maintain the current status of EU citizens in the UK and UK nationals in the EU-27, but without the framework of EU citizenship which is conditional on membership of the EU. By comparison, the LTR Directive has been described as creating a “subsidiary form of EU citizenship”.

The LTR Directive offers TCNs a wide range of rights equal to that of nationals in their host country. It removes Member States’ direct control by outlining that where conditions are met and where there is no Article 6 exception (for public policy or public security), long-term resident status must be granted (Article 7(3)). Ordinary immigration law is not subject to those kinds of external oversights or constraints. However, LTR status remains far from parity with EU citizenship status and, in turn, the EU’s proposal. The material rights are less, the scope is more restrictive, and the acquisition process more arduous.

Equal treatment in respect of social assistance and social protection can be confined to core benefits (Article 11(4)), as defined in the ECJ ruling in Kamberaj. Retention of restrictions to access to employment or self-employed activities where these activities are lawfully reserved to nationals, EU or EEA citizens is also permitted (Article 11(3)(a)). Further, acquiring LTR status does not confer the free movement rights within the EU that its citizens are accustomed to; Article 14 outlines the conditions which must be met to acquire the right to reside in a second Member State for a period exceeding three months. The right to family reunification represents another stark contrast: for TCNs, the highly restrictive Directive 2003/86/EC applies, while the EU proposal guarantees that the Withdrawal Agreement would apply to family members, ‘regardless of their nationality, as covered by Directive 2004/38’. This covers both current and future family members.

Turning to scope, the EU proposal is unequivocal: it captures all 'UK nationals who reside or have resided in EU27 at the date of entry into force of the Withdrawal Agreement', UK nationals who work or have done so in EU27 at that date whilst residing in the UK or another EU27, UK nationals covered by Regulation 883/2004, and (in all cases) their family members. Conversely, Article 3(2) of the LTR Directive outlines numerous exclusions, including TCNs resident due to pursuit of studies or vocational training, seasonal workers, and cross-border service providers.

Further, in exchange for this more limited status, there are a greater number of conditions to satisfy. Beyond its mutual basis with the EU proposal’s requisite 5 years continuous legal residence, the LTR Directive also sets out that TCNs need to: provide evidence that they possess sufficient stable and regular resource to maintain themselves and their family members without recourse to the host Member State's social assistance system; have adequate sickness insurance; and, in some cases, demonstrate compliance with integration conditions imposed by national law. Necessarily, implementation of the UK proposal would therefore subject UK nationals in the EU-27 to a much more demanding application process with likely lower success rates than the more black-and-white EU proposal.

Undoubtedly then, the EU proposal is far more favourable to that offered by the UK. This is not unexpected; while the EU recognises the valuable contribution made by TCNs to the Member States in which they reside, inevitably a proposition vested in the interests of the 3.15 million EU citizens in the UK will comprise a better deal than the residual LTR Directive position. And, for negotiating purposes, offering identical conditions for UK nationals in the EU-27 was necessary.

Nonetheless, were the UK proposal to prevail, its nationals are still afforded better protection than their EU citizen counterparts in the UK. The LTR Directive and Article 7(3) in particular represent a safety net to which the EU-25 are held to account. There is no such equivalent for EU citizens in the UK who, post-Brexit, would be entirely at the mercy of ordinary immigration law were the UK’s position adopted.

Non-reciprocity

There is an undeniable gap between the EU negotiating position and the LTR Directive. However, it is to some extent quantifiable. In contrast, the extent of the chasm between the current position of EU nationals in the UK and the UK’s proposal for their post-Brexit future is not yet known. Moreover, the UK’s silence on numerous existing rights does not bode well. While the comparable certainty of the LTR Directive is enough to be relatively reassuring to UK nationals, those who do not yet qualify for the status will be subject only to national immigration law and thus face the same level of uncertainty as EU citizens in the UK.

It might seem surprising that the UK’s response to the EU proposal is so weak. But perhaps this is somewhat accounted for by the difference in numbers: in comparison to the 3.15 million EU citizens in the UK, there are an estimated 900,000 UK nationals in the EU-27. Most of them do not vote in UK general elections. Perhaps they are the ‘sacrificial lambs’ of these negotiations. But this fails to account for the 60% of UK nationals who want to keep their EU citizenship. (Notably, this number increases by 20% for the up and coming political force that are the 18-24 year olds.) If these polls are to be believed, the UK government has a greater investment in a good deal than their proposals implied they thought to be the case. Lest it further alienate the electorate, the UK government should reconsider the EU’s position, taking into account applicable EU law, and provide an injection of reality into its negotiating stance.

Barnard & Peers: chapter 27

Photo credit: Irish Times

Bargaining Chips No More: The Status of EU and UK citizens after Brexit

Steve Peers

Introduction

Today, the results of an inquiry into the status of EU citizens in the UK after Brexit, set up by the NGO British Future, are released. I was a member of the panel of that inquiry, which sought to bring together supporters of both the Leave and the Remain side, from different political parties and from outside Parliament as well.

This blog post has three related objectives: a) to set out and defend the main recommendations of the inquiry regarding EU citizens in the UK after Brexit; b) to set out my own recommendations for what should happen to UK citizens in the EU after Brexit; and c) to discuss the idea (floated recently) of ‘associate citizenship’ of the EU for UK citizens after Brexit. Just to make clear, the second and third points were outside the remit of the British Future inquiry – but I think it makes sense to look at those issues in parallel today. Obviously, the comments here on the latter two points are mine alone, and my views on them are not necessarily shared by any of the other people on the panel.

Results of the Inquiry: Recommendations on EU citizens in the UK

The basic starting point of the inquiry is that EU citizens who were in the UK exercising rights on the basis of EU law before a cut-off date should retain their rights after Brexit. This was the explicit position of many senior people on the Leave side during the referendum campaign, and necessarily also reflects the views of those on the Remain side, who were advocating the continued application of EU free movement law to the UK.

It is also consistent with the international law principle of ‘acquired rights’ in international law. It’s unlikely that this principle could, by itself, ensure enforceable protection of specific individual rights in British law, for the reasons explained by Professor Douglas-Scott. However, the UK certainly ought to act to give practical effect to this principle. Equally, the proposal takes account of the barriers to expelling many EU citizens imposed by human rights law, discussed by Matthew White here.  

Quite apart from legal considerations and political promises, it would give effect to basic ethical principles of humanity and fairness: it would be morally wrong to disrupt the lives of people who came to the UK legally and have contributed a great deal to it. Their anxiety and uncertainty about the future should be alleviated as soon as possible.

Our recommendation would in effect create a special ‘ex-EU’ status for EU citizens who were resident in the UK before the cut-off date. Those who were already entitled to permanent residence status as of the cut-off date would keep that status (or their entitlement to apply for it). Those who were resident in the UK as of the cut-off date, but who had not yet earned entitlement to permanent residence status could still obtain it over the next five years. Those who first arrive after the cut-off date would be entitled to invoke EU free movement law in the UK until Brexit Day, after which point they would switch to ‘ordinary’ UK immigration law status, whatever that might be. (It remains to be seen whether the EU and the UK negotiate some agreement on immigration issues, which might entail a preferential status falling short of free movement of people, after Brexit).  

Ex-EU status for EU citizens in the UK would entail keeping all the same rights they would have had if the UK had stayed in the EU, in terms of access to employment and equal treatment. There are several advantages to this approach.

First of all, this approach would be easy to reciprocate on the EU side, for UK citizens living in the EU (more on that below). Secondly, it would be easier to administer: forcing all EU citizens in the UK to apply for a completely new distinctly British status would cost a fortune, and it would take years to process all the applications. Having said that, there will be some difficulties of implementation in practice, although some complications are unavoidable no matter what approach is taken to this issue. The report of the inquiry makes some detailed suggestions about how implementation could work.

Thirdly, the proposed approach would come with built-in legal clarity, since the rules governing EU free movement law are already the subject of EU legislation and many court judgments. Finally, it would be consistent with the government’s plans for a ‘Great Repeal Act’, which will keep EU law on the British statute book until Parliament (or, if given power, the executive) decides to amend or repeal it.

We chose a cut-off date of the official start of the process of leaving the EU. This is earlier than Brexit Day, on the basis that people that come after the notification date cannot expect to enjoy EU free movement rights in the UK indefinitely after Brexit Day. However, it is later than the referendum date, on the basis that EU citizens who arrived before the process of leaving the EU officially began should not be prejudiced.

Finally, why recommend that the UK act unilaterally, before the EU guarantees the status of UK citizens in the EU? Firstly, because of the principles of humanity and fairness discussed above: EU citizens in the UK should be regarded as ends and not means, and certainly not as bargaining chips. Secondly, because a principled position taken unilaterally by the UK could reduce the political tension on this issue, and make it easier to reach a bilateral agreement once talks start. If it adopts our recommendations as regards the position of EU citizens in UK law, the UK government could and should point out that it expects the EU side to agree to the same principles, particularly given that our recommendation would be easy for them to reciprocate.

UK citizens in the EU

So far, the EU has refused to negotiate on the status of EU and UK citizens post-Brexit, because the UK has not yet officially notified its intention to leave the EU. While it is unfortunate that negotiations have not already started, those who condemn the EU for its position but who also voted Leave should reflect that it was their vote that threatened the status of the people concerned in the first place.

Once Brexit negotiations begin, hopefully the negotiators will tackle this issue first and aim to reach early agreement on it, so that the people affected can make firm decisions about their future and administrations can prepare to implement the rules in practice. In principle, it should be easy to reach agreement, if both sides aim for a reciprocal ‘ex-EU’ status. Since the issue logically falls within the scope of Article 50 TEU, as an issue to be agreed as part of the Brexit process, it should not be necessary to get unanimous agreement of Member States or to subject the deal to national ratification by Member States (the Article 50 deal can be approved by a qualified majority of Member States in the EU Council).

As I suggested on the day after the referendum, it would be best to have rules in the withdrawal treaty on this issue which are legally binding, define the exact scope of the rule, can be supplemented by further joint measures if needed, and must be fully applied in further detail in national law. I suggested some wording for the Article 50 treaty (now amended to make clear that non-EU family members of UK and EU citizens are covered): 

1.       Any citizens of the UK residing in the EU as of [Brexit Day] and their family members, and any EU citizens residing in the UK as of that date and their family members, shall retain any rights which they acquired pursuant to EU free movement law before that date. They shall also continue to acquire rights which were in the process of acquisition as of that date.

2.       The parties shall give full effect to this principle in EU or national law, as the case may be.

3.       The EU/UK Joint Committee may adopt further measures to implement this rule.

The British Future report describes how the UK could implement such a legal obligation in its law. The EU side could best implement its corresponding legal obligation in the form of a short Regulation or Directive setting out general rules on ex-EU status, making consequential amendments to other EU laws. Later EU laws can then cross-refer to this basic law and/or the Article 50 deal.  

Associate EU citizenship

Another issue much discussed in recent weeks is the idea of ‘associate citizenship’ for UK citizens in the EU post-Brexit. Presumably this would be offered not only to UK citizens in EU, but to other UK citizens too. It was first suggested by a Luxembourg MEP, and since then has been promoted by Guy Verhofstadt, who represents the European Parliament (EP) during Brexit talks.

There’s a lot of unpicking to do here. First of all, the UK press has described Verhofstadt as an ‘EU negotiator’ who will make this idea part of his ‘negotiating mandate’. But neither part of this statement is true. Verhofstadt does not ‘negotiate’ on behalf of the entire EU; he may well not even end up ‘negotiating’ on behalf of the EP. Article 50 TEU leaves it up to the EU Council (Member States’ ministers) to decide who negotiates, and they usually choose to designate the Commission (subject to a negotiating mandate from the Council) to negotiate with non-EU States. The Council might choose to designate itself as negotiator. It’s entirely unprecedented for it to designate the EP as negotiator, and there’s no reason to think it would start now.

The actual role for the EP is its power of consent (veto) over the final Article 50 treaty, as discussed further by Darren Harvey here. So Verhofstadt – if he has support from a majority of MEPs – could threaten a veto at the end of the process unless one of the EP’s demands are met. That’s significant, but not the same thing as being a negotiator.

The second big issue to unpick is the status of EU citizenship. Whenever it’s mentioned, a phalanx of keyboard warriors take to social media to argue ‘There's no such thing as EU citizenship, because the EU is not a State’. This is clearly false, as Article 9 TEU shows:

In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

So EU citizenship exists despite the EU not being a State (note that the ECJ has confirmed that the EU is not a State). However, that citizenship can only be obtained by means of holding citizenship of an EU Member State. It therefore seems obvious that UK citizens will lose EU citizenship after Brexit (unless they have dual nationality of an EU Member State), although some contest this interpretation.

It follows that ‘associate citizenship’ for UK citizens after Brexit is a new idea that would have to be established by way of Treaty amendment, entailing ratification by all Member States. Another route to this end would be for some or all Member States to agree formally or informally to offer their citizenship to UK citizens. Either route would give the full panoply of EU citizenship rights (free movement, voting, consular representation) to UK citizens. But equally either scenario sounds incredibly fanciful.

A simpler way forward is to aim to retain only some of the rights of EU citizenship for UK citizens – namely the free movement rights. Most of these rights could indeed be retained by adoption of an EU immigration law extending them to UK citizens, perhaps by means of a special ‘ex-EU’ status for all UK citizens, not just those living in the EU on Brexit Day. By way of exception, an EU immigration law could not address the issue of UK citizens entering the EU post-Brexit to work, since Article 79(5) TFEU leaves that issue up to Member States. However, a group of Member States could agree common rules on that between themselves.

Thirdly, as noted already, there’s nothing to ‘negotiate’ here – at least between the EU and the UK. All these scenarios are unilateral – the EU and its Member States can decide on what they want to offer to UK citizens (if anything) without approval from the UK – just as some UK citizens already have (or can obtain) dual citizenship of Ireland or other Member States. Of course, Member States may be unwilling to go down this road without some form of reciprocity from the UK, and the UK might be unwilling to offer that; but that is a purely political matter.

Next, what role does Verhofstadt actually have as a ‘negotiator’ here? Not much. Since any unilateral decision by the EU would not be negotiated with the UK (and Verhofstadt will not be ‘negotiating’ the Article 50 deal anyway), and the EP cannot directly force the other EU institutions or Member States to consider the idea of associate citizenship (in whatever form), there would be no explicit role for the EP unless the Commission tabled EU legislation. So it’s not clear why Verhofstadt makes a big fuss about this issue.

Maybe he simply wants the attention. That’s an understandable trait in a politician. However, there’s something not only cynical, but a little bit cruel, in raising false hopes. Unless Verhofstadt clarifies his objective and presents a plan for achieving it, he risks a backlash.

Finally, at least a few Leave supporters seem upset by this associate EU citizenship idea – although conversely some Leavers seem perfectly relaxed about it. But frankly, so what? If the EU made a unilateral offer to individual UK citizens, how could the UK government stop them accepting it? Even if the UK banned dual citizenship in general, or dual EU/UK citizenship in particular, the EU could still offer EU citizenship to UK citizens who were willing to denounce their UK citizenship to obtain it. If the UK then passed a law banning people from denouncing their UK citizenship to this end, there is no legal reason why the EU should recognise the effect of that law. If the UK then persecuted anyone who purported to denounce UK citizenship, those people could seek asylum in the EU. 

Any Leavers who are really angry about the idea of UK citizens getting EU citizenship would be better off instead spending some time trying to understand why some of their fellow UK citizens value their EU citizenship so highly – and why all UK citizens should honour this country’s long history of respecting those with different points of view.  

Barnard & Peers: chapter 13, chapter 27

Photo credit: timeshighereducation.com

What happens to British expatriates if the UK leaves the EU?

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.

Legal Migration  

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.

There are EU rules on admission of students and researchers, but there would be no requirement to award UK citizens who wanted to study in EU Member States equal treatment as regards tuition fees or admission quotas. British students would have more limited rights to work during their studies, and no right as such to stay on after their completion.

Irregular migration

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.

Conclusions

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