A step too far – a warning for Private Prosecutors
When the British electorate voted in the referendum on 23 June whether to stay in or leave the European Union few of us in the legal profession thought we would need to become experts on a rather arcane provision of the Treaty on European Union (Article 50) about the mechanisms which need to be applied to the departure of a Member State from the EU. However, now this is the case and there is much rumination about the constitutional requirements for both the UK to trigger the departure procedure and the EU institutions to negotiate that event.
The mechanics of Brexit
One thing which seems clear both in the UK Government and the EU institutions is that this procedure will have to be started sooner or later. There is little agreement on whether there is a need to start the process quickly or whether the UK can wait until a propitious time for it to do so. Everyone seems in agreement that it is for the UK to begin the procedure in accordance with its constitutional requirements.
The UK Government’s position at the time of writing is that it intends to trigger Article 50 in early 2017. Once this has happened, according to the Treaty, everyone has two years to reach agreement on the terms of the UK’s departure. If there is no agreement then the period can be extended (apparently indefinitely) but this can only be done by way of a unanimous vote of the Council in agreement with the leaving Member State (the UK). It will only take one negative vote by a remaining Member State to scupper an extension of the two year period and in this event the EU treaties simple cease to apply to the UK (and British citizens).
Difficult negotiations ahead
It is too early to tell whether there is a serious risk that the Article 50 procedure may result in a chaotic departure of the UK from the EU. But with tempers beginning to fray in some Member States, and patience with the British political establishment at an all time low across the EU, the possibility is real. Should the UK’s negotiating position be perceived by any other Member State as unreasonable and intransigent the risk will increase. There is more than one Member State where politicians and civil servants are very sensitive to the issue of trust and good faith in intra-EU negotiations.
The UK has not always had an outstanding reputation in this department. The findings of the Chilcot Report (the Report of the Iraq Inquiry published on 6 July 2016) are unlikely to assuage good faith concerns. Those EU Member States which participated in the invasion of Iraq in 2003, the so-called coalition of the willing, with the encouragement of the British government, may be particularly susceptible to skepticism about the bona fides of British claims.
Residence rights of British citizens living in the EU if no agreement is reached
What would a departure of the UK from the EU without the resolution of the issue of residence rights mean for British citizens living in EU Member States?
If at the end of the two year negotiating period there is no agreement either on the terms of departure or on the extension of the negotiation period then the guillotine applies. This means that from one day to the next British citizens living in the remaining Member States will cease to be EU citizens and will instead become third country nationals – the EU term for foreigners.
What law would then apply to their continued residence?
There are three areas to consider: the national law of the relevant Member State, the European Convention on Human Rights, and EU law – in particular the Long-term Residents’ Directive.
Each Member State will have national administrative law rules about continuity of rights and legitimate expectation which vary according to the national constitution.
European Convention on Human Rights
The European Convention on Human Rights provides some comfort regarding continuity of residence in its jurisprudence on the right to respect for private and family life (Article 8). A number of cases have come before the European Court of Human Rights regarding Russian nationals or stateless persons (former Russian nationals) resident in Latvia and Estonia after the recovery of independence of those two countries from the former Soviet Union. The ECtHR has been generally sympathetic to the claims of these individuals to a right of continued residence as an inherent part of their right to respect for their private and family life. The facts in these cases have been particularly strong – they have involved people born or who have lived the majority of their lives in the host country. Such may not be the case for many British citizens living in EU Member States.
EU law: Long-term Residents’ Directive
EU law, however, may provide more certainty than the ECHR for many of these people. The Long-term Residents’ Directive (2003/109) adopted in 2003 applies to third country nationals who have been residing in a Member State for five years or more. All Member States are bound by the Directive except for Denmark and Ireland (and of course the UK – which at that point would no longer be a Member State in any case).
The main criterion for long-term resident status is the duration of the residence. The Directive applies to all third country nationals (which British citizens would have become) but excludes students (partially), refugees and beneficiaries of international protection. Also excluded are diplomats and those who reside solely on temporary grounds such as au pairs, seasonal workers and posted workers.
Requirements for long-term resident status
The main requirements for long-term resident status under the Directive are:
Member States are permitted to require third country nationals to comply with integration conditions in accordance with national law. According to the Commission’s report on the application of the Directive published in 2011 (COM (2011) 585), Austria, the Czech Republic, Germany, Estonia, Greece, France, Italy, Lithuania, Luxembourg, Latvia, Malta, the Netherlands, Portugal and Romania all apply the integration conditions requirement. They include knowledge of the language of the host country (at varying levels) and knowledge about the host society – mainly history, legal order and values. Some Member States require the third country national to pass an exam after following compulsory courses (which may be expensive) while others only require attendance at integration courses.
A long-term residence permit must be applied for and its issue is not automatic.
The status is lost in the event of absence from the territory of the EU for a period of 12 consecutive months. This would mean that a stay exceeding 12 months in the UK would result in the loss of long-term resident status. The status is also lost in the event of an expulsion order on grounds of public policy and security.
Benefits of long-term resident status
The Directive foresees intra-Member State mobility for long-term residents with the possibility of work or residence in a second Member State.
Family reunion for long-term resident third country nationals is much more limited than for EU citizens exercising Treaty rights, being mainly restricted to spouses and minor children (in accordance with Directive 2003/86).
Key issues for British citizens with long-term resident status
What would be the key issues for British citizens if they are subject to the long-term resident regime in EU Member States?
The first consequence is that they will have to commit themselves to residing in the host state. Multiple or extended trips back to the UK would place in jeopardy their residence status.
Secondly, the conditions for acquisition of the status are substantially more difficult than for EU citizens seeking permanent residence. The language requirement applies in a number of the favourite Member States for British citizens living elsewhere in the EU – France, Italy, Portugal. But it does not apply in Spain where the largest number of British citizens living elsewhere in the EU reside.
Thirdly, family reunion rights would be much diminished.
Fourthly, social rights can be limited in a way which is not permissible for EU citizens.
In the event of a disorderly departure of the UK from the EU there is some solace for British citizens living in EU Member States and indeed the conditions of continuing residence are less onerous than those for foreigners seeking indefinite leave to remain in the UK. But the situation would be much less comfortable for these British citizens than their current status as EU citizens.
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