What does Brexit herald for UK Expats?

05 Jul 2016

The current position

In a 1993 case before the European Court of Justice (ECJ) (Konstantinidis v Stadt Altensteig) the then Advocate General to the European Court of Justice – the distinguished English lawyer Sir Francis Jacobs QC – said that any citizen of one EU country exercising his free movement rights in another EU country “is entitled to say ‘civis europeus sum’ and to invoke that status in order to oppose any violation of his fundamental rights”. That statement may sound high-faluting and of little practical importance. But it makes the point that while the UK is in the EU, UK citizens who move to (say) France, or buy property in France, have a status in France which is quite different in legal terms from the status of, say, a Russian citizen. EU nationals in the EU have the right, which a Russian does not have, to invoke a panoply of EU law rights, and to complain to the European Commission, the courts of the country concerned, and ultimately the ECJ if those rights are not respected. Mr Konstantinidis was a Greek citizen who wanted his Greek name transliterated into the Roman alphabet in a way that reflected how his name was pronounced. That is probably not something that UK citizens are ever likely to be concerned about.  But take a much more recent and relevant case. Mr de Ruyter was a Dutch citizen who was entitled to social security and health benefits in Holland. He had in income from assets in France. The French Government imposed social security contributions from him on that income. Mr de Ruyter went to the French courts: he said that making him pay social security contributions when he got no social security benefit from France was contrary to the right he had as an EU citizen to equal treatment. The ECJ ruled in his favour: France was not entitled to impose those contributions on EU nationals who lived outside France and had no right to French social security. That case has been directly relevant to any UK citizen who lives in the UK but owns a house in France from which they get a rental income. France is now under an EU law obligation to pay back the social security contributions it imposed.

Very importantly, a Russian owning property in France cannot say “civis europeus sum“: and as a matter of EU law he can still be made to pay social security contributions. At the end of the day, his rights are for France to decide as it wants and neither the ECJ nor the European Commission can protect him. The basic EU principle is that EU citizens have to be treated equally to a home country national when they live in or own property in another EU Member State. Like all principles there is then a lot of detail, but the key features of their rights are:

  • the right to buy property (with a couple of specific exceptions in the EU Treaties, EU States cannot, as Switzerland does, declare parts of the country out of bounds to purchasers from the EU);
  • the right to set up a business;
  • the right to live in the country as long as they like without having to apply for long term resident status or citizenship (a relief if, for example, their French or Spanish is not good)
  • the right to take any job without having to get a “Green Card”;
  • the right in most cases to have their professional qualifications recognised;
  • the right not to be deported without a proper reason;
  • the right to vote for their local maire, alcalde or Bürgermeister.

Another important issue is rights to healthcare. This is a bit complicated, because there is a tension between the principle that EU citizens should be treated the same way when in another EU state as citizens of that state and the understandable concern that citizens of poorer countries with a struggling health service should not be able to head off to richer countries and get treated there at the expense of those countries. The EU legislation – Regulation 883/2004 – is therefore a bit of a compromise. But the basic points are:

  • EU citizens visiting another Member State, and their family, have the right to any medical treatment they need while they are there, on the same terms as a home country national. The host State pays for that (just as the UK will currently pay to treat a Frenchman who breaks his leg in the Lake District).
  • If an EU citizen works or runs a business in another State, they and their family again get treated in the host State on the same terms as a host State citizen: the host State pays (as they will be probably be paying taxes and contributions to the host State).
  • If an EU citizen has an old age pension from his home State, they and their family get treated in the host State on the same terms as a host State citizen: but this time it is the home State that pays.
  • A citizen living in one Member State can travel to another Member State for the purpose of getting treatment and the home state has to pay: but the citizen has to get the permission of their home State first (the home State can refuse if the citizen would not get that treatment at home, though it can’t refuse the citizen would have to wait longer for treatment than medically advisable).

What will now happen post Brexit?

The honest answer is that there are simply no guarantees. Some or all of these rights could be preserved. But it all depends on the final outcome of the post-Brexit deal. If the UK were to get a similar deal to that of Norway then nothing much would change. For the purposes of free movement Norway, as an EEA Member State, is for most purposes in the EU. It imports all the EU’s rules. However, it should be noted that free movement rights for non-economically active citizens (e.g. the retired) are lower than for the EU.

Or the UK might try to enter bilateral deals with countries like France on the basis that French immigration is not as troubling as Bulgarian. But it is unlikely that France would (or even could under EU law) do any such deal. So it is certainly possible that after Brexit all UK citizens’ EU law rights vanish, and their status in, say, France becomes the same as that of a Russian.

It is unlikely that there will be mass deportations or deprivations of property: the European Convention on Human Rights, and States’ own constitutions, would be likely to stop that. It is also true that many third country nationals live and work happily in other EU countries. But non-EU citizens have no automatic right to work, run a business and so on without the say-so of the government concerned. And it is likely to be difficult to get that say-so if UK citizens are seeking jobs that locals can do (e.g. working in a bar) or planning self-employment and therefore having no support from an employer. Rich UK citizens (like rich Russians) will usually be welcome, but a retired teacher hoping to retire to a small house in France on the back of the sale of their house in the UK may find it trickier, particularly if the UK starts imposing the sort of income conditions on French people who want to live in the UK as it currently does for migrants from India. Unless a Norway-type deal is entered into, UK citizens will also find that they have to join the non-EEA queue at the airports, will be subject to a 90-day stay limit, and will need to be prepared to answer questions each time they go to the continent about how long they will be there and how they are going to support themselves. Some commentators have suggested that the Vienna Convention on the Law of Treaties will help.

The relevant provision is Article 70 of that Convention, which protects rights and obligations “created through the execution of the treaty prior to its termination“.

The first point to make is that because the EU Treaties make express provision for withdrawal (Article 50) it is highly unlikely that the Vienna Convention applies. Further, it is not clear that the “rights” extend to individuals’ rights rather than the rights of the State. Finally, even if they apply to individuals, it is very unclear what those words mean. They would probably stop France from confiscating a house bought previously – although the French constitution and the European Convention on Human Rights would probably prevent that anyway. But it is hard to see that those words would give UK citizens any continuing right to be treated as an EU citizen in the years after Brexit, when it came to matters such as the rights I’ve been discussing above. Further, it would be for the courts and lawmakers of each Member State to interpret and apply this rule: neither the European Commission nor the ECJ would be there to help. So the claim that the Vienna Convention offers any solid protection to expat Brits is unclear. And no-one claims that anything in the Vienna Convention could help Brits who at the time of Brexit merely plan to live or work in another EU State but have not yet done so.

UK citizens living in other EU States therefore have good reason to feel concerned by the referendum outcome. As in so many other areas, their position post-Brexit will be shaped by the specifics of any deal entered into by the EU and the UK.