Brexit impact on British expats
Vaughan Jones discusses the effect of Brexit on expats and free movement within the EU.
In a decision of the European Court of Justice in 1993 it was said that any citizen of one EU country exercising his free movement rights in another EU country is entitled to say that he is a citizen of Europe, and to use that status in order to oppose any violation of his fundamental rights.
Therefore, while the United Kingdom remains within the EU, a UK national who lives in Spain (or any other EU country) has a different legal status in Spain than that of e.g. a citizen of India in Spain; EU nationals who live in, or own property in, another member state, have the right to be treated in the same way as a home country national. The rights of EU citizens include the freedom to live in that other country for as long as they like, to buy property, to take up employment, to set up in business, and to vote in local elections.
As regards healthcare, EU citizens, and their families, visiting another country in the EU have the right to medical treatment they need while they are there, on the same terms as the citizens of that country. Similarly, EU citizens, and their families working or running a business in another country in the EU are treated in that other country on the same terms as its citizens are.
Thus, in a recent case, a Dutch citizen who was entitled to social security and health benefits in the Netherlands owned property in France and received demands from the French taxman for social security contributions from him on income from his assets in France, notwithstanding that he had no corresponding entitlement to social security benefits from France. It was held that this was contrary to his right as an EU citizen to equal treatment. However, in contrast, an Indian citizen owning property in France does not have that right and may be subject to social security contributions. France alone may determine what rights (if any) he may have.
For the future, the position of British citizens who live elsewhere in the EU will be determined by the terms of any Brexit deal entered into by the EU and the United Kingdom. We remain a signatory to the European Convention on Human Rights, and with that, and rights conferred by member states own domestic laws, in mind, on any sensible analysis there will not be widespread expropriation of assets, or the wholesale deportation of UK nationals.
Of course, citizens of non-EU countries do live, work and run businesses within the Union, but to do that they need the permission of the government of the country in question, and that might be tricky if they are seeking jobs which locals can do, or have no means of support were their business to fail. The UK imposes conditions on would-be migrants from outside the EU relating to their income and assets, and parallel restrictions might be required of British people wanting to work in EU states – especially if our government places controls on immigration from the EU.
We might try to negotiate arrangements with members of the EU individually, but they may not wish (or be able to, under EU law) to cut any such deal with the UK. On the other hand, if we were to come to an agreement with the Union as a whole, and adopt the so-called “Norwegian model”, little would change for those who live in the EU are in work, because Norway is a member of the European Economic Area (EEA), and as such is in many respects effectively in the EU. (It is also worth considering that unless an arrangement of this sort is arrived at, British citizens travelling in the EU will probably return to a pre-1973 scenario in which we have to answer questions about how long we will be visiting for and how we intend to going to support ourselves, be subject to a maximum stay duration, and – never mind being excluded from the Schengen scheme - find ourselves joining the non-EEA citizens queue at passport control).
Thus, following Brexit the rights of UK citizens in EU law might disappear, and if so the status of a UK national in Spain would then be the same as that of – say - an Indian national; alternatively, things may stay much as they are. At present, it seems that nothing can be ruled out, or indeed, ruled in. Everything depends on what form the post-Brexit deal ultimately takes.
For further information or guidance on the potential impact of Brexit on expats, contact Vaughan on 01228 552222 or email firstname.lastname@example.org.
About the author
Vaughan Jones is Partnership Chair and a specialist in Corporate Law.