BREXIT for the UK expat

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By: Lander Michel 

LL.B – B.A. / Universidad Jesuita de Guadalajara

LL.M. in International Law /Leiden Universiteit

email address: lmichel@miderainternational.com

Inspired by recent events as to what the Brexit means for UK expats in continental Europe I have been enticed to write this article. Firstly it is important to take note of nations that are not part of the EU but with which it has special commercial relationships and how they are treated. I will center on Switzerland on the one hand as well as the European Free Trade Association (EFTA[1]) States (excluding Switzerland) and then develop what my future vision for the EU-UK will possibly be and how it will affect those already living in the EU as well as what awaits those who seek to live in the EU.

SWITZERLAND

The relationship of Switzerland with the EU, despite being part of the EFTA, is unique in the sense that it rejected joining the Agreement on the European Economic Area (EEA) in a referendum in 1992 and preferred to establish a series of bilateral relationships to deal with the EU as opposed to the rest of its members (it has over 120 treaties in place) given the resistance to join the EEA by the Swiss.

Switzerland, via a referendum in 2000 signed several treaties known as Bilaterals I[2] which includes reciprocal rights regarding Freedom of Movement Rights (the right to abode and work in the EU/Switzerland). At present, the EU is the first trade partner of Switzerland which, in turn, is its fourth trading partner[3]. A million EU citizens currently live in Switzerland and another 230,000 crossing the border daily to work whilst there are 430,000 Swiss citizens working in the EU at present.

In a referendum, held on the 9th of February 2014, a new admissions system for all foreigners based on quantitative limits and quotas was approved. The result of the referendum have already been applied by the Federal Council and Parliament in 2015 -although it has yet to be introduced in the constitution as clause 121a). This decision, threatens the structure of Bilaterals I as the treaties are mutually dependent[4] whereby if any of them is not renewed or denounced then they all cease to apply, this is known as the Guillotine clause.

The Swiss, for their part, have sought to negotiate an amended Free Movement of Persons agreement[5] since July 2014 however the EU response to this was that an amendment was incompatible with the Agreement[6].

Should there be no negotiation, the Guillotine clause would apply and Switzerland would need to renegotiate various treaties with the EU unless another referendum were held in 2016 which would counteract the referendum of 2014; this is far from a certainty and with the Brexit fresh on the minds of Brussels and, should this referendum not occur, then the Bilaterals I are likely to be denounced as the deadline for the constitution to be modified is February of 2017. The effect would likely be a staying period of six-months to renegotiate the agreements which coincides with the time for the denunciation of the Bilateral I to take effect. Given the interest of Switzerland to renegotiate the treaties as quickly as possible it is likely that the citizens living abroad feel no change, in real terms, to their status, although the EU could, in application of the principal of reciprocity, establish quotas and limits for Swiss citizens living in the EU although this is unlikely to occur.

EFTA STATES

Iceland, Norway, Switzerland along with Lichtenstein founded the EFTA. This intergovernmental association, save Switzerland, signed the EEA with the EU whereby they share common rights and obligations as enshrined in the EEA which entered into force on the 1 of January of 1994.

The EEA foresees the application of the Free Movement of Persons[7], which grants the right of the nationals of the EEA States the right to work as well as the right to establish themselves both as natural or legal persons in the EEA States. The differences for EFTA States between being, or not, a member state of the EU arise from certain areas still being of their sole jurisdiction (e.g. agriculture, fishing, commerce, justice, internal politics and customs). What this means for the layman is that although EU law will not apply in those areas his Free Movement of Persons Rights are the same as those of an EU citizen; the EEA is almost as generous as being a full member state of the EU without the drawbacks. The most significant drawback is that the EFTA States cannot directly influence EU decisions which may affect them and, on the contrary must adopt them or denounce the EEA.

 At present the EFTA States (excluding Switzerland) have not voiced an interest in rejecting the EEA although there is little interest on their behalf to become full members of the EU. Thus the citizens of the EEA area will continue to harvest the benefits of forming part of it.

UK

As regards the future of UK citizens living abroad in the EU several scenarios are possible. The most optimistic scenario is for there to be a negotiation between the EU and the UK within two years of the BREXIT notice where the latter will seek market access and the former will allow it in exchange for the Free Movement of Persons to its citizens this would be a “business as usual scenario”. The next most optimistic scenario would be as the former however, market access to the EU would be gradual in particular as regards financial services and the UK is likely to apply a system of quotas for EU nationals (the EU would reciprocate) the Agreement would allow for citizens already living in the EU-UK a means whereby they could continue to live and work in the EU and this Agreement would be negotiated within two years of the BREXIT notice. The worst case scenario would be for the UK to be only gradually allowed market access to the EU following several years of non-access to the EU market and for a system of quotas of EU/UK citizens to be instated while applying the same immigration principals to EU/UK citizens as to third countries without preferential treatment.

It is the view of this author that the future UK-EU relationship will resemble the Swiss-EU relationship more so than the EU-EFTA relationship this, should another referendum in the UK not be held, in addition the negotiation position of the UK with the EU will be weak as the EU will benefit from companies relocating and from a loss of the competitive edge of the UK as well as more talent staying in the EU as well as the UK being considered a third state for EU research grant purposes which will likely mean that negotiations will drag on well past the two years from the time of the BREXIT notice to the EU. Meanwhile citizens from the UK-EU will be granted some form or means whereby they are allowed to continue living and residing in the EU/UK however, after the formal exit of the UK from the EU, the immigration laws applicable to them will be those which apply for third, non-treaty, nations in so much as the new EU/UK treaty is not in force it is even possible that a reciprocal quota system apply between the EU/UK although I foresee that this quota system will not long endure and full access will again be a reality within 5-7 years of the BREXIT on the other hand full market access is likely to be far more gradual.

[1] An intergovernmental organization set up for the promotion of free trade and economic integration to the benefit of its four Member States (Switzerland, Iceland, Liechtenstein and Norway).

[2] The subject matters are Science, Public Procurement, Free movement of persons, Air Traffic, Road Traffic, Agriculture, Technical trade barriers and free movement of persons.

[3] European Commission General Directorate in Trade statistics of 2015. http://trade.ec.europa.eu/doclib/docs/2006/september/tradoc_122530.pdf. Retreived 29 of June 2016.

[4] Agreement on the Free Movement of Persons between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part. Art. 25 (4) “The seven Agreements referred to in paragraph 1 shall cease to apply six months after receipt of notification of non-renewal referred to in paragraph 2 or termination referred to in paragraph 3.”

[5] A letter requesting the revision of the Agreement on the Free Movement of Persons was sent to the European External Action Service in July 2014.

[6] Response from the High Commissioner of the Union for Foreign Affairs and security Policy Ms Catherine Ashton via her spokeswoman Maja Kocijancic.“The commission has no intention of renegotiating the Free Movement of Persons Agreement with the objective of introducing quotas and national preference,” “Quantitative limits and national preference are contrary to our treaties. Negotiating them is not an option for the commission.”

[7] Article 28 of the EEA.

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