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Leaving the EU: How might people currently exercising free movement rights be affected?

Published Monday, June 27, 2016

Many constituents are asking how leaving the EU would affect the immigration status and entitlements of British citizens currently living in other EU Member States, and EU citizens living in the UK.

In short, it is not possible to give any definitive answers at this stage, because we do not know what post-exit arrangements the Government would agree with the EU, or what the nature of any future relationship between the UK and EU/EEA might be. The Government has not indicated what position it would take on these issues if the upcoming referendum resulted in a vote to leave the EU.

STOP PRESS: for post-referendum commentary, see section 5 of Library briefing Brexit: what happens next? The remainder of this briefing has not been updated since the referendum result.

Withdrawal negotiations would need to address the position of British citizens living in other Member States

Section 4 of Library Briefing Paper Exiting the EU: UK reform proposals, legal impact and alternatives to membership includes some general commentary on what could happen to EU rights in the event of Brexit. There is no settled opinion on this.

It is likely that the UK and EU would seek to negotiate a withdrawal agreement, both to cover arrangements for withdrawal and to take account of the withdrawing State’s ‘future relationship with the Union’, including any vested rights. However there is no certainty about how these issues might be dealt with by such an agreement.

It is possible, at least in theory, for the UK to exit the EU without agreements in place about what would happen to the rights and obligations that derive from membership of the EU. For example, if the parties were unable to reach an agreement during the two year negotiating period, and no extension was granted.

The Government has published a White Paper outlining the process for withdrawing from the EU, as set out in Article 50 of the Treaty on European Union. Put briefly, the European Commission would negotiate a withdrawal agreement with the UK. The Commission’s approach would be informed by negotiation guidelines set by the European Council. The final agreement would need to be agreed by the UK and EU, and approved by the European Parliament.

All the EU Treaties and any new EU legislation would continue to apply to the UK until the Article 50 agreement had entered into force, or for two years after formal notification of the UK’s intention to withdraw (if no agreement had been made and no extension had been granted).

The Government’s paper notes that Article 50 does not specify the extent to which the withdrawal agreement should detail the future relationship between the departing Member State and the EU. The Government’s view is that any detailed relationship would have to be reflected in a separate agreement. Article 50 does not specify whether or not those negotiations should take place at the same time as the withdrawal agreement negotiations.

The White Paper identifies the status and entitlements of British citizens living, working and travelling in other Member States as one of the issues that would need to be addressed during withdrawal negotiations. It states that “there would be no requirement under EU law for these rights to be maintained if the UK left the EU”.

On the other hand, it would seem unlikely that either the UK or EU Member States would want to end up in a situation where large numbers of their resident populations faced sudden curtailments of immigration status. Mass expulsions would create significant costs and logistical difficulties, and generate legal challenges.

Different opinions have been expressed on what would happen to expats’ rights in practice. The Leave.eu campaign suggests that “The EU would be obliged to grant permanent settlement rights to Britons living in Ireland and mainland Europe. The UK would do the same.”

The Government’s expectation, as set out in the White Paper, is that if EU Member States agreed to maintain rights for British citizens, the UK would be required to reciprocate for EU citizens in the UK.

The nature of the UK’s future relationship with the EU/EEA could affect how much free movement rights would change in practice

In terms of the longer-term impact on British citizens’ rights to travel to, live and work in the EU (and vice versa), much would depend on the nature of any future relationship between the UK and EU/EEA.

Whether or not the UK would seek continued full access to the EU’s Single Market is particularly relevant, since that is likely to require the continued application of free movement of people law.

Various different models for a future UK-EU/EEA relationship have been suggested. A recent Government paper outlining possible alternative models for the UK outside the EU discusses some of these. Some of the existing alternative models, such as membership of the European Economic Area but not the EU (‘the Norway model’), would likely require continued application of EU free movement of people law. But there is no guarantee that the UK would be able to join the EEA. First we would have to apply to re-join the European Free Trade Association (EFTA) and then apply for EEA membership.

Similarly, under The Leave Alliance’s six-step ‘Flexcit’ model for withdrawing from the EU (which is not considered in the Government’s paper), the UK would initially accept continuation of freedom of movement in order to be able to exit the EU and stay in the Single Market.

However there are alternative proposals backed by some leave campaigners, such as a bilateral trade agreement with the EU, which would not necessarily have the same implications for continued free movement of people rights.

The Government has not given an indication of what kind of relationship it would seek to negotiate with the EU in the event of a vote to leave the EU in the referendum. Section 11 of the Library briefing on Exiting the EU: impact in key policy areas discusses some of the broader considerations which would be likely to have a bearing on the UK’s approach to controlling EU immigration (and vice versa) in the event of a Brexit, such as the extent to which the UK wanted to continue to attract certain types of migrant to the UK and the extent of demand for migrant labour to the UK.

In conclusion, it seems unlikely that the position will get any clearer before the referendum vote.

How many British citizens might be affected?

Estimates of the number of British migrants living in other EU countries differ among the available sources.

There is no single source of data that provides perfectly comparable and up-to-date figures on the number of migrants living in each EU country by either country of birth or nationality. However, by examining statistics from a range of sources, taking account of exactly what they measure, it is possible to make some broad comparisons.

The available data suggests there are roughly around 1.2 million British migrants living in other EU countries, compared with around 3.0 million EU migrants living in the UK. Section 6 of the Library briefing on Migration Statistics has more detailed discussion of the available sources and figures.

 

 

Commons Briefing papers CBP-7525

Author: Melanie Gower

Topics: EU law and treaties, Immigration

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