Trapped In No Man’s Land – What Will Happen To Expats If Britain Leaves The EU?

Ever since Peter Mayle’s “A Year in Provence” was published in 1989, British people have been inspired to leave this grey, wet island and start life again on the Continent. Fantasies of rambling cottages brought for a song; fresh markets filled with lush produce and the warm sun caressing one’s skin may not accurately convey the reality of living in France, Italy, Spain or beyond, but that has not stopped 1.26 million Britons making an EU country their home.

It is understandable therefore, that the EU Referendum, due to be held on 23rd June, is leaving a number of British expats uncertain, scared and ultimately, furious.

Expats are uncertain as to how their residency in an EU country will be affected if the ‘leave’ camp prevails, scared about what will happen to their pensions and right to work in their chosen country and furious at the Government for putting them through this.

Why British expats are worried
British expats who have made new lives for themselves in other EU countries have reason to be concerned. It is no secret that one of the key drivers for the referendum is the UK wants to take back control of its borders. UKIP’s success in the 2014 European Elections clearly showed that a significant proportions of the British population was concerned about the influx of migrants, mostly from Eastern Europe and the effect this was having on Britain’s labour market, infrastructure and culture.

Free movement is an iron-clad, non-negotiable principle of the EU. Members, especially Germany and France, have made it clear that Britain will not be permitted to wiggle out of it and retain free access to the EU market. And that is while the UK is still an EU member. I do not relish Britain’s chances of negotiating a visa system for European migrants if we choose to leave the club.

Work permits have also been proposed as a solution to curb EU migration into Britain. A policy of ‘take the skilled and reject the non-skilled’ may seem reasonable, but it raises two important questions. One, will it be applied to all EU countries or just the Eastern Bloc; and two, how will this affect the thousands of British retirees living out their golden years in sunnier climates such as Spain and France and not adding much to the local economy?

It would be naive to imagine that if Britain restricted free movement in any way that EU countries would not return the favour in kind.
And then there is the question of healthcare. Could Spain, already struggling with what seems an insurmountable economic mess, decide to deny the 319,144 Britons, many of who are retirees, access to their healthcare system? In theory it could, but this would provoke a retaliatory reaction from the British Government, especially given that in 2013-14, the UK paid £580m to other EEA countries for the treatment of British pensioners.

So, is this what relations risk coming to? A tit for tat situation whilst negotiations are finalised for a new Britain/EU relationship? And do British residents living in the EU even get a say in the matter?

The right to vote
Expats who may be most affected by a Brexit – those living in Europe for more than a decade, will not get a say on June 23rd.
Under UK law, British citizens who have lived overseas for 15 years or more cannot vote in elections or referendums. This was challenged and dismissed in the high court recently, with the judges stating Britain was entitled to set a cut-off period “at which extended residence abroad might indicate a weakening of ties with the United Kingdom.”

The 1969 Vienna Convention
Leave campaigners are relying on the Vienna Convention on the Law of Treaties 1969 (the Convention) to ease the worries of British expats in Europe. They state that if Brexit became a reality on 23rd June, the Convention’s articles on ‘acquired rights’ would kick in. These protect the rights which individuals build up over time, and hold despite any changes in future treaties enacted by their nation.

This theory has already been tested. Few remember that one country has already held a referendum where the people voted to leave the EEC (the predecessor of the EU). I am talking of Greenland, where in 1985, 53% of people voted to leave the EEC after a dispute over fishing rights.
After the vote, Greenland continued to receive EU funding and had tariff-free access to the Community market for fisheries products in return for satisfactory EC access to Greenland waters for the duration of the fisheries agreement.

Article 2 of Protocol No. 34 annexed to the Treaty on the Functioning of the European Union (attached to the Greenland Treaty which set out the conditions of the exit) clarified that there would be a transitional period during which Greenlanders, non-national residents and businesses with acquired rights under EU law would retain these rights.

A note in the House of Commons Library states: “Generally speaking, withdrawing from a treaty releases the parties from any future obligations to each other, but does not affect any rights or obligations acquired under it before withdrawal.”

This would work both ways of course; EU migrants living in the UK would be entitled to rely on the Convention for the protection of their rights.
If the Greenland precedent is applied to a Brexit, then British expats living on the Continent have nothing to worry about. However, it could be a different story for those wanting to emigrate in the future.

Obtaining citizenship
The example of Greenland and the protection of ‘acquired rights’ under the 1969 Vienna Convention should give British expats confidence that the lives they have built won’t be turned upside down if a Brexit occurs. I would speculate that there is plenty of room for optimism on the part of British expats but the only way to be 100% certain of your right to remain in a country is to obtain citizenship.

Each EU country has its own rules and regulations for granting citizenship and the application processes can be complex and costly. It is therefore advisable to seek legal advice from an Immigration law specialist before embarking on the process.

OTS Solicitors specialises in Immigration law. Based in London, our expert Immigration team is regarded as one of the best in the UK. If you need legal advice on solidifying your rights in an EU country, please phone our office on 0203 959 9123 to make an appointment.