Brits living in Europe. The issue of Brexit remains a cause of concern for Brits currently living abroad and those thinking of moving within the next few years. We had the pleasure of gaining some insight from Lynne Marr, a partner in the employment team at Scottish Law firm Brodies (www.brodies.com) to get an expert opinion on the matter.
Brits living in Europe – Key takeaways:
- British citizens currently living in EU Member States cannot be asked to leave because of Brexit
- To a large extent, we’re in the hands of remaining EU Member States
- There’s still a lot of uncertainty surrounding what will happen in the coming years
Lynne Marr from Brodies
1) What does Brexit mean for Brits currently living in Europe – will they be asked to leave? If people move to Europe in the next two years or so, will they be permitted to do so?
For now, there will be no impact for them and they will not be asked to leave at the moment. The decision of the referendum is advisory for the UK Government: not binding. For now, we are still in the European Union. Brits living in any other EU Member State are there exercising their freedom of movement rights under European law. For those who have been in an EU state for some time (5+ years). They will need to meet relevant qualifying criteria (which relate to continuous residency) will have “permanent residency” rights.
These rights derive from the Citizens Directive 2004/38. This Directive is implemented by each of the member states into their own domestic law. In the UK, it is implemented through the Immigration (EEA) Regulations 2006. Other EU countries will have a corresponding piece of domestic legislation. Taking the Spanish example. We spoke to Spanish labour lawyers. They stated that if a UK national acquires permanent residency in Spain, they will get most of the same benefits enjoyed by Spanish citizens. They must fullfill certain conditions, such as being able to support themselves financially. (This is the same position for EU Nationals acquiring permanent residency in the UK).
As and when Article 50 is triggered, the UK will enter into a period of negotiation with the EU. During any period of negotiation. We will remain in Europe and all EU citizens will continue to exercise their EU rights. That means that people will be able to exercise freedom of movement rights and go to, for example, Spain in the next couple of years. However, if Article 50 is triggered relatively soon and the ‘divorce’ takes effect in the next couple of years. Anyone going to live in Spain now will not be able to reach the threshold of five years continuous residency to acquire permanent residency. They may end up being subject to relevant immigration control at that point. We just don’t know what that will be.
What will happen to EU Nationals in the UK and UK nationals in other member states? The UK Government has stated that it expects the rights of EU Nationals in the UK to be fully protected. This will be driven by whatever agreement is reached with Europe. How far other Member States will protect the rights of UK nationals in their countries is also an issue.
The Spanish could decide that those with permanent residency rights in Spain will be allowed to remain in Spain without any immigration restrictions. It may be very difficult politically and legally to take away rights people have acquired retrospectively but not impossible. This is the thinking in the UK about EU Nationals who have permanent residency at the point of Brexit. Equally, the Spanish may decide that anyone in Spain at the point of exit can stay without immigration control. There is a possibility that after the UK leaves the EU, British citizens in Spain will be subject to immigration restrictions in place in Spain. For example, they may need to get a visa depending on the immigration control system in place there. UK nationals may end up being treated in the same way as non-EU nationals now.
Exactly what will happen to EU Nationals in the UK and UK nationals in other member states remains uncertain.
It may be possible for those who have been in Spain for a long time (10+ years) to apply for Spanish Nationality. This would allow them to remain there after Brexit. For an application to succeed, there are qualifying criteria that must be met. An applicant will, amongst other things, have to demonstrate good citizenship and integration into life in Spain. Also to be able to speak Spanish and show that they are taking part in social activities with Spaniards. We are advised by Spanish lawyers that there is no dual nationality agreement between Spain and the UK. So if a UK national wanted to apply to become a Spanish National they would have to apply to renounce their British Citizenship. Many UK nationals are reluctant to do this and may want to rely on their permanent residency rights. There would appear to be many UK nationals who are already applying for permanent residency cards. These cards don’t give you any greater rights than you automatically get under the Citizens Directive and relevant domestic law. They will help to prove your status though.
2) Will British citizens be able to move to Europe after the UK officially leaves the EU? If so, will there be certain criteria to meet, access to healthcare etc. ?
It will be possible, but we don’t know how they will be able to do it at this stage! It may be that the UK will come to an agreement with the EU that requires reciprocal freedom of movement rights to continue to be respected. UK nationals will be able to move to Spain on the same basis as they do now. Alternatively, a Brit might only be able to migrate to a European country if he/she can meet the relevant immigration controls of that country. That will likely be different for every EU country.
If you have any more queries or want to keep up to date with all Brexit news. Visit the Brodies website for more information.
