What happens to British citizens abroad and EU citizens here, if we leave the EU?

20 June 2016

If we leave the EU, what happens to British citizens abroad and EU citizens here?

The short answer is, we don’t know, and probably wouldn’t know for several years.

Negotiations during the process of leaving seem likely

Nothing happens the day after a vote to leave the EU. The important date for anybody worried about their immigration status would be the date of withdrawal from the EU, which is likely to follow at least two years of negotiations.

The status of British citizens already living in mainland Europe, and EU citizens here, would be a natural issue to be on the agenda in those talks designed to unravel the existing UK-EU relationship.

The extent of controls on future migrants would, similarly, be up for discussion in a separate treaty about the future UK-EU relationship.

The UK could also try to remain in the European Economic Area as an alternative to EU membership, like Norway, Iceland and Liechtenstein. That would involve accepting free movement of people, unless you think the exemption granted to Liechtenstein sets a precedent.

Citizens from other EU countries

As we’ve said, the status of people from other EU countries who live in the UK is likely to be the subject of negotiations.

Even if there wasn’t an explicit agreement, and what happens is entirely up to the UK, it seems politically unlikely that current EU expats would be deported en masse. No political leaders on either side of the referendum debate have suggested that should happen.

If there is a vote to leave, the UK might treat EU immigrants who have been in the UK for more than five years differently from more recent arrivals.

One legal expert, Helena Wray of Middlesex University, suggests that EU citizens with ‘permanent residence’ under EU lawwhich generally kicks in after five yearsmight be allowed to keep that status, or switched to the nearest equivalent in UK law (‘indefinite leave to remain’).

Those who don’t could, in theory, be told they have to qualify under UK immigration law in order to stay, but again the politics point toward a more lenient approach.

And if there were attempts to remove people, there could be challenges using human rights laws or trying to rely on ‘vested rights’. This is the idea that legal benefits that people have got because of treaties between countries survive even after a country pulls out of that treaty.

This is a general concept under international law, rather than being anything specifically to do with the EU or immigration. Several legal experts have cast doubt on vested rights as something to rely on if the situation arose, with Professor Damian Chalmers of the London School of Economics calling it a “nonsense argument”.

British citizens in other EU countries

Much the same goes for British expats in places like France and Spain: they can expect a negotiated agreement, or failing that a basic level of goodwill in their host country, but shouldn’t put too much stock in vested rights as a fallback.

If instead EU countries applied their immigration rules to the letter, Professor Steve Peers of the University of Essex suggests that there would again be advantages to being a resident for five years or more:

“Those UK citizens who were long-term residents in a Member State (legal residence for more than five years) could apply for long-term resident status under EU law”.

This is a status granted to non-EU citizens who have lived legally in an EU country for some time. But Professor Peers says that “as compared to obtaining permanent residence status as an EU citizen, there are more conditions attached to obtaining such status, and fewer benefits”.

We should point out that one of the largest populations of British expats the 250,000 or so people who live in Irelandis considerably less likely to be affected by any of this. British citizens, unlike those from mainland Europe, are not considered ‘non-nationals’ for the purpose of Irish immigration lawjust as the 380,000 Irish people here are not considered to be from a foreign country under UK law.

This reflects a system going back long before the UK and Ireland joined the EU, although it’s possible that this regime might also be reconsidered if the UK were no longer a member, according to Professor Bernard Ryan of the University of Leicester.

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