E.g., 09/21/2017
E.g., 09/21/2017

A Game of Chess, Not Tennis: Unraveling the Rights and Status of “Brexpats”

Commentary
March 2017

A Game of Chess, Not Tennis: Unraveling the Rights and Status of “Brexpats”

Tomek Nacho/Flickr

The UK government is embarking on a two-year journey to establish a new relationship with the European Union for which there is no legal precedent or pathway. Much of the discussion thus far has amounted to political ping-pong, not least concerning the post-Brexit future for the small number of individuals who have exercised their right to reside and work in fellow EU Member States. Despite significant hand-wringing over the status of mobile EU citizens, deep and detailed thinking about the complex constituent elements of free movement—from access to health care to portability of pension rights—has been lacking. And while the rights of the more than 3 million EU citizens in the United Kingdom have dominated media headlines and parliamentary debate, the 1.2 million UK citizens or “Brexpats” who have chosen to live in one of the 27 other EU countries have been largely forgotten. This is no small omission; while the UK government can determine the rights and status available to EU nationals within its borders (subject, of course, to the rule of law), the situation of its own citizens elsewhere relies on negotiations with 27 different actors (and the EU institutions themselves).

Complex Questions

With Article 50 being triggered on Wednesday, nine months after the British public voted to secede, the UK government and its European counterparts can finally move beyond soundbites and get down to business. Ensuring continued rights of residence on both sides of the Channel will be at the heart of the negotiations. Even if a deal is forthcoming (and the May government has suggested it will guarantee residence rights for current EU nationals in return for similar rights for Brits already living abroad), this is only the beginning of a more complex discussion concerning the various ancillary rights and conveniences that have been available to mobile EU nationals and, until now, been largely taken for granted.

Individual interests in those rights vary across groups, particularly between the economically active and inactive, as well as across EU Member States. A plethora of Brexpat lobby groups has emerged since the referendum, from those focused on the rights of retired UK nationals in Spain, through to the niche situation of UK nationals working for EU institutions in Brussels who, due to the fact they have not established tax residency through employment, will be unable to qualify for permanent residence.

While the European Union has established critical baseline legislation to manage different forms of non-EU migration—such as the right to long-term residence after five years—each EU Member State sets its own parameters for terms of entry and residence beyond basic precepts. While there is an EU-wide right to family reunification, for example, each Member State may impose language tests or minimum salary requirements on non-EU nationals in an effort to ensure robust integration and self-sufficiency of the immigrant population. Post-Brexit, UK nationals may well find themselves subject to these different rules.

Beyond this, elements of immigration that are rarely discussed in public fora, such as the recognition of formal academic and professional qualifications, will become subject to scrutiny. Will the United Kingdom manage to secure a continuation of mutual recognition for certain professional qualifications, such as engineering or medicine (as currently takes place under EU law), or will it have to negotiate bilateral agreements with the EU27 anew? Currently, EU citizens (including UK nationals) benefit from an EU-wide scheme to ensure they can retain social security benefits and pensions accrued through work in one or more EU Member States. By contrast, migrant workers from outside the European Union must rely on a complex lattice of bilateral agreements that their country of citizenship has managed (or not) to negotiate with the country of destination; if the United Kingdom is unable or unwilling to secure its continued participation in the current EU regime, will it renegotiate these anew or allow them to lapse?

Beyond these general questions, there are particular issues that affect key groups. The situation of British retirees—of whom tens of thousands are estimated to reside in Germany, Ireland, Italy, the Netherlands, Portugal, and, of course, Spain—and their ability to access pensions and public health services has raised particular concern. Many pensioners were already vulnerable under EU social security legislation, because they often move between two countries on a seasonal basis (risking losing entitlements to health care) and because many benefits and services are dependent on being “self-sufficient,” which is ill-defined in EU law and hard to prove (especially for older people who put their savings into costly prerecession holiday homes).

Less attention has been given to other groups, such as spouses, students, business owners, and intracorporate transferees, where rules vary enormously and potential problems are legion. MPI Europe’s new Brexpats research project will dig into some of these complexities, both in general and for specific groups, over the course of the negotiations process.

Asymmetrical Negotiations

A number of challenges face the UK government in advocating for its Brexpats. First, the data on who exactly it is advocating for are muddy, and often absent. The United Kingdom does not keep tabs on its emigrants, and unlike countries such as Poland and Lithuania has little diaspora engagement. Estimates of the number of unregistered UK nationals across the European Union vary, but are thought to be high in countries such as Spain. Amongst the EU27, data collection on mobile citizens varies: in Scandinavia detailed local population data are obsessively collected; elsewhere, countries know little. The nature of free movement, and implied fluidity, means that many EU citizens live a shadow life in another EU state, or split time between several countries and properties.

Second, it is clear that the United Kingdom may be negotiating on an uneven platform with a number of countries. From the available data, it is clear that more than half the British population in Europe’s sunniest climes—Spain, Malta, Cyprus, and Portugal, among them—are over age 50 (and one-third in Malta and Spain over age 65). This sits in stark contrast to an overwhelmingly youthful EU population in the United Kingdom, with just a handful of pensioners from Spain and Italy. Within some countries, the spread of UK nationals is deeply uneven; in Spain, health care is devolved to the 17 autonomous communities, some of which are placed under severe strain by the number of British, German, and Scandinavian retirees who have populated coastal regions such as the Costa Blanca (and their disinclination to register in the municipal padrón register, which gives localities vital funding). These communities may not be as amenable to a deal on Brexpats as their national government, unless they see some direct benefit. Similarly, some of the countries that have donated their youth population to the British economy are keen to see them return, as in the case of Poland. Thus they have less at stake than a UK government happy to see its older UK nationals continuing to enjoy the sunshine elsewhere.

Finally, a great deal of the goodwill that might have been prevailed upon has dissipated due to the toxic nature of the UK political debate on free movement. A number of European leaders have expressed frustration that some of the issues raised by UK politicians in advance of the Brexit referendum about the negative effects of free movement (such as access to benefits and health care for economically inactive EU citizens) could have been resolved through domestic policy entirely in line with existing EU law. At the very least, they argue that former Prime Minister David Cameron could have raised his concerns about the scale of EU migration (and social security access) through formal channels, instead of in the context of threatening a referendum. As a result, the real problems that exist—and that other countries might have felt inclined to resolve—were sidelined by a debate of national political expediency.

Where Next for Free Movement?

Free movement is based on reciprocity: countries experiencing high levels of growth can import labor from those with higher supplies of labor, while every country benefits from the circulation of ideas and the growth of networks that result. But this reciprocity has been tested in recent years. Instead of a system where everyone wins, a number of Member States feel as if they have taken on a disproportionately negative burden. To mitigate the risks of further disenchantment with the European project, the European Union will have to address the challenges of intra-EU mobility head on, regardless of what happens in the Brexit negotiations.

But in the short term, the treatment of UK nationals abroad will need to be taken more seriously by the London negotiating team. Rolling back existing rights and entitlements of citizenship, whether deliberately or through politicking and neglect, is a new frontier for a liberal democracy such as Great Britain. While the number of UK nationals abroad might not seem politically significant for a mainstream political party years from election, the implications for the next generation of socially mobile, ambitious Brits who will find their mobility curtailed may well have political consequences for decades to come.