Saturday, December 27, 2014

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
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
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
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

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.

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. 

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