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BREXIT

Brexit would leave expats in ‘ghastly’ legal limbo for years

British expats living in the EU would face years of legal uncertainty after Brexit, a UK parliamentary committee concludes, adding weight to the worries of many Britons abroad.

Brexit would leave expats in 'ghastly' legal limbo for years
Photo: Paul Lloyd/FLickr

The conclusions of the committee will only heighten the fears expressed by many British citizens living in the EU that Brexit would see them lose their fundamental rights and that it may take years of painful wrangling before they regain them.

Lawmakers from the 19-member House of Lords European Union Committee are due to release a report of their findings on Wednesday after hearing the expert analysis of two senior lawyers familiar with the legal wranglings of the EU.

The committee's chair, the Conservative MP Lord Boswell of Aynho said: “The rights of some two million UK citizens living abroad would need to be determined, as would the rights of a similar number of EU citizens living in the UK.

“This is complex stuff – you are talking about the right to residence, to healthcare and to schooling, about maintenance payments and access to children, about research projects and contracts that cross borders, sorting all this out would be a daunting task.”

In his evidence to the committee Professor Derick Wyatt QC, a professor in law at Oxford University said: “It is estimated that two million Brits live in other EU countries. Take elderly people who have lived for 10 years in Spain. After five years, they acquired a right of permanent residence as citizens of the union and that includes access to the Spanish healthcare system.

“If we leave, what do we do about vested rights. Do we recognise rights to permanent residents that have arisen? What transitional rights do we give someone who has been working in the UK for for years and has children at school and so forth?

“Let us not forget that for every example in the UK, there is an example of a UK citizen elsewhere.

We expats didn't abandon the UK so ALL of us deserve the vote

“My guess is that the inclination of the government and parliament would be to be generous as regards those who had already made their lives in the UK, knowing that it would be likely to be reciprocated.”

Lawmakers in British parliament’s upper house stressed that successfully renegotiating the rights of the two million Britons living in the EU as well as future trade deals would be a “complex and daunting task”.

EU rules place a legal limit of two years on post-Brexit negotiations, but the report warns that any agreements between Britain and other member states would likely take far longer to thrash out given the countless obstacles that would lie in the way.

“The long-term ghastliness of the legal complications is almost unimaginable,” Sir David Edward, a former judge at the European Union Court of Justice told the House of Lords committee.

He is not the only EU legal expert who has raised concerns about rights of Britons in a post Brexit EU and how live will inevitably get more complicated.

In an interview with The Local George Peretz, a QC specialising in EU and public law said: “The principle of EU law means that every Brit living or owning property elsewhere in the EU has a vast range of legal rights: to work, to run a business, to buy property, to live where they like, to use public services such as health, to pay no more taxes than locals, to vote in local elections and so on.

“Depending on the final outcome of any post-Brexit deal, all of those rights could vanish if the UK leaves the EU.

In short Brexit would throw everything into the air and we don’t know where or how it will all land.” 

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BREXIT

Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Brexit really does mean that Britons are no longer EU citizens. Claudia Delpero looks at whether there's any other way they can keep their rights.

Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Britons lost EU citizenship when the UK left the EU, on 1st February 2020. 

It is the first time the EU’s top court has rules on the matter, after a number of legal cases challenged this specific Brexit outcome. The decision also sets a precedent should other countries decide to leave the bloc in the future. 

What has the EU Court decided?

The Court of Justice decided on a case brought by a British woman living in France.

Before Brexit, she could vote and stand as a candidate in her town of residence, Thoux. But after the UK withdrawal from the EU, she was removed from the electoral roll and excluded from the municipal elections that took place in March 2020, during the transition period.  

As the mayor refused her appeal to restore the registration, she took the case to the regional court in Auch, which agreed to request an interpretation of the rules to the EU top court. 

Julien Fouchet, the barrister supporting her and several other cases on the EU citizenship of British nationals, argued that the loss of EU citizenship and voting rights was disproportionate. It would also be contrary to the EU Charter of Fundamental Rights, given that the woman also lost her voting rights in the UK, having lived abroad for more than 15 years.

Alice Bouillez, who has lived in France since 1984 and is married to a French national, could have applied for French citizenship, but did not do so because she said “this was not necessary” before Brexit and, as a former UK official, she had taken an oath of allegiance to the Queen.

On Thursday the Court of Justice announced the decision about her case. The court ruled that the “possession of the nationality of a member state is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status.”

The court therefore confirmed that British nationals automatically lost their EU citizenship as a result of Brexit and, as a consequence, Britons also lost their voting and electoral rights in municipal elections in the EU (unless the country where they live set different rules). 

What is EU citizenship?

EU citizenship was introduced by the Treaty of Maastricht of 1992, when borders were opening and the bloc was integrating economically after the end of the Cold War. 

Under the treaty, every person holding the nationality of an EU member state is a citizen of the Union. EU citizenship is additional and does not replace nationality, the treaty specifies. But this creates the first form of a transnational citizenship that grants rights across borders.

EU citizens have the right to access each other’s territory, job market and services under the principle of non-discrimination. If they are economically active, they have the right to reside in other EU states and be joined by family members, access healthcare at the same conditions of nationals (for emergency treatment also when travelling temporarily), obtain social security benefits and see their professional qualifications recognised.

Beyond free movement, at the core of EU citizenship there are also political rights, such as participating in the European Parliament election, voting and standing as candidates in municipal elections when living in other EU countries, receiving consular protection from other EU states outside the EU, and taking part in European Citizens’ Initiatives asking to the EU to legislate on certain matters. 

Which EU citizenship rights have Britons lost with Brexit? 

For British citizens who were living in the EU before Brexit, the Withdrawal Agreement protects some of these rights. Britons covered by deal have their residence, access to work and education, healthcare, social security and qualifications secured, but only in the country where they were living before Brexit.

But the right to free movement in other EU states, consular protection in third countries, and the political rights attached to EU citizenship were lost, the Court confirmed. 

For British citizens in the UK, the trade and cooperation agreement has preserved some social security rights and, in theory, the possibility to have professional qualifications recognized when moving to an EU country. These provisions however lack details and may take a long time before they work in practice. 

As the “European Union” no longer features on British passports, the possibility to access EU lanes at airports to skip passport control queues has also vanished. 

“The loss of those treasured rights has been clear to those of us living in the EU from the early days of Brexit. But for Brits in the UK, the realities of life outside the EU, and the consequences of Brexit, are only just dawning. Long queues at the borders, roaming charges, obstacles to working abroad, etc. are the new reality,” said Sue Wilson, Chair of the group Remain in Spain. 

While she said the court’s decision was “no real surprise,” she argued that “this is not the Brexit the public were promised, or that the majority voted for.”

Can British citizens get some of these rights back?

Julien Fouchet was disappointed at the Court decision and promised to continue the legal fight, bringing the case at the European Court of Human Rights (which is not an EU institution). 

Other two cases on the matter of EU citizenship for British nationals are still pending at the Court of Justice of the EU. One of them aims to determine whether EU citizenship is a “fundamental status” that cannot be removed but Thursday’s decision could have already provided the answer.

Another option to reconsider some of the rights is the renegotiation of EU-UK trade agreement, when it will be reviewed in 2025. 

Meanwhile, the EU is revising the rules for non-EU citizens living in EU countries on a long-term basis, making it easier to move across borders. 

Applying for citizenship is so far the only option to regain voting rights, although not all EU countries allow dual nationality. 

Sue Wilson, who has long campaigned for the UK to stay in the EU, said: “There is only one way to restore the loss of our rights, and that’s to rejoin the single market, rejoin the customs union, and eventually, rejoin the European Union… Until that day, we will continue to be second class citizens whose rights have been diminished for the sake of an ideology.”

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