Barder: Exceptional and rare
The UK referendum on EU membership is rapidly approaching and the breadth of issues which the voting public must take into consideration is enormous. There has been substantial media interest in the issue of costs and benefits for business, self-employed, start-ups, workers and banks but perhaps less in respect of British citizens who for one reason or another need to make choices about where they are going to live: stay in the UK, move to another EU Member State or where already living in another Member State prepare to move back to the UK. According to current estimates, over 2 million British citizens currently live in other Member States.
In this blog, we look at some of the issues which face British citizens who may be thinking of moving to another Member State to take advantage of new opportunities. At the moment, pre-referendum, when a British citizen wants to move to another Member State, he or she can do so without worrying about the consequence for his or her immigration status in the destination. EU free movement of persons, including workers and the self-sufficient, is the framework which makes these choices simple – both for nationals of other Member States to come to the UK and for British citizens to move elsewhere. This framework is likely to change if the UK votes to leave the EU. In such an event, there will be lengthy negotiations which will determine the immigration status of those who have moved from a Member State to the UK and those British citizens who have moved and are living in another Member State. At the moment, it seems likely that those persons who are established in a host Member State (both British citizens elsewhere and other EU citizens in the UK) can expect to benefit from at least some transitional arrangements which will permit them to remain where they are. But what might those transitional arrangements be? There are a number of different situations which will need to be accommodated.
EU citizens who have lived for five years and worked, been self-employed or self-sufficient in a host Member State
Starting with those people with the greatest claim to be entitled to continue to remain in a host state, under the current arrangements in the EU, any EU citizen who has lived for five years and worked or been self-employed or self-sufficient in a host Member State acquires permanent residence status. This is an EU status and in the event of a vote to leave the EU, it would not continue to exist in the UK. However, the time period for acquisition of a similar UK immigration status is the same - indefinite leave to remain requires five years residence in the UK. But for the EU status, the applicant does not have to pass a language or life in the UK test, which is required for the UK status of indefinite leave to remain, so there is a considerable difference. There are also differences in other EU states between the EU status of permanent residence and their national status equivalent to indefinite leave to remain for other migrants (which is what British citizens will be if the UK should leave the EU). Language tests are common as are integration tests like the UK’s life in the UK test. It is not certain how many of the British citizens living in other Member States would be able to pass those tests. So for the group of people who have lived for more than five years in another Member State, there will need to be negotiations and a fair degree of give and take if British nationals who have lived a long time in another Member State or other EU citizens living in the UK will be protected from exclusion on the basis of national immigration rules.
In the negotiations which would follow a vote to leave the EU, the UK would need to champion the right of continued residence of British citizens in other EU Member States and in return accept such a right for EU citizens in the UK. Otherwise, all those British citizens whose residence right is based on EU law would be at risk of being required to return to the UK. Those persons who had acquired permanent residence in the UK or British citizens who have permanent residence in another Member State would be likely to be a priority on the list of people whose status would need to be secured.
British citizens with less than five years in another Member State as workers, self-employed or self-sufficient persons
Next in line would be those British citizens who have lived between three months and five years in another Member State as workers, self-employed or self-sufficient persons. These people currently enjoy a right of residence, but it is not permanent so their claim to protected residence in the event of a UK departure from the EU will be more tenuous. Those who reside three months or less in another Member State are not obliged to provide any information to the host state and do not enjoy a right of residence beyond three months. Both British citizens in other EU states and nationals of other EU countries in the UK who have resided for less than three months are the least likely to receive protection in the negotiations.
But the negotiations will take time so some arrangements would need to be made for people who are in the process of acquiring rights during that period. A decision will have to be taken either to include people who have already started working, for instance in a host Member State – be it a British citizen in another EU Member State or an EU citizen in the UK, or to exclude them. Time limits will have to be agreed and cut off dates set for the acquisition of residence rights. This will create a rather unsettled environment for people who have to make life choices and moving, accepting job offers or staying at home.
A case study – British citizen seeking career prospects in Europe
Let us take the situation of a young British citizen, Anna, who is working for a manufacturing business in Wolverhampton and is offered a great job by a customer business of her current employer but is based in Dusseldorf, Germany. The employer in Wolverhampton has very friendly relations with the German company and while the British employer would not want to lose the young British worker, there would be advantages to strengthening the relationship with the German company by having Anna employed by it. If Anna accepts the job, it is unlikely that she will have been resident and working in Germany for more than three months before the UK referendum vote. In the event of a vote to leave, the negotiations on transitional arrangements between the UK and the EU which would follow, it is always possible that the date of the referendum will be one of the trigger dates for the acquisition and maintenance of residence rights. Anna may find herself in a position of substantial uncertainty for a number of years with no clarity on the durability of her residence status. Further the status of her social security contributions will also be the subject of negotiations – exactly what will happen to her contributions will have to be thrashed out by the UK and the EU. Presumably, they will not be too substantial so if necessary she can just walk away from them.
In the case of a British citizen like Anna, perhaps the consequences are not so serious – she is young and may have other opportunities in front of her. But Anna and other young people might not be so sanguine about such uncertainty which may have substantial impacts on their future careers. Other British citizens may find themselves in more complicated situations, such as those who have taken up residence on retirement in another Member State. We will look at the possible consequences of a vote to leave the UK for this group in our next blog.
Partner and Head of Department
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