Theresa May and the UK government have signalled their intent to enact Article 50 by March 2017. This will mark the beginning of a two year negotiation with the EU regarding the terms of the UK’s exit from the Union. These talks will determine, among other things, the rights of British Expats living in the EU, as well as those of EU citizens in the UK.

As the House of Lords showed in their recent report, there is much uncertainty and anxiety among the British Expat community in the EU. In this article we shall try and assuage some of these anxieties and provide some clarity on the status of the British EU population. It should also be noted that rights will remain unaffected until the UK has formally left the EU, therefore retaining their current rights for at least another two years.

In Spain, the British Expat community stands at least 300,000 (whilst some estimates go as high as 800,000). In Ireland, the population is estimated at around 250,000, and in France 200,000, with other countries such as Portugal, Germany, and the Netherlands also hosting a significant number. Currently, EU membership means that Expats can use the healthcare systems of their host countries on the same basis as nationals. Naturally, the prospect of Brexit has caused much consternation as it places these rights onto uncertain ground.

With the NHS already strained beyond its means, it is likely that the UK Government will do all they can to make sure British Expats remain supported by their host nation’s healthcare system. For example, this may come in the form of reaching a deal to pay for the healthcare of its citizens in Spain the ex-Spanish Foreign Minister has suggested. Indeed, many pensioners in Spain already have their costs covered by the British Government under EU agreements through the S1 form, coming to £223 million in 2014-15.

Reassuringly, Theresa May has sought an early deal with regards to the status of Britons in Europe. Moreover, whilst Liam Fox drew criticism for referring to EU nationals in the UK as one of the ‘main cards’ in negotiations, there was a degree of truth in what he said. It would be impractical for all countries concerned to rescind the rights of EU immigrants, from the 1.2 million British living in the EU, to the 3.6 million EU citizens in the UK. It is for this reason that Prime Minister May has sought these reciprocal rights, and it is likely that they will be granted, for residence at least.

It should also be stressed that the EU has not forgotten about the large proportion of the British population that voted to remain. Indeed, Charles Goerens MEP proposed a treaty amendment in November which would offer citizens of departing states the option for ‘Associate Citizenship’ of the EU. So important was this that Guy Verhofstadt, chief EU negotiator, asked MEP Goerens to remove this from the lengthy treaty amendment process so that it could be used directly in the Brexit negotiations. The associate membership would provide rights such as the freedom of movement and the right to reside in the EU Member States. The German Vice-Chancellor has also said British people living in Germany, Italy, or France should be allowed to retain their EU citizenship.

In terms of retirees in the EU, they currently are able to enjoy the same state pension rights as those who live in the UK. Due to the triple-lock guarantee, these pensions rise in line with inflation, average earnings, or 2.5%. This applies to those who retire within the European Economic Area (EEA) and those who have social security agreements with the UK, such as USA and Barbados. In order for this uprating to continue, the UK would have to strike reciprocal agreements with the EU or its individual constituent states. Moreover, as the UK would no longer issue S1 forms, pension income may also be subject to taxation in your host country – 7.4% in France, for example.

The 1969 Vienna Convention is often cited in this debate regarding ‘acquired rights’. However, legal experts and the House of Lords report have shown that this is not particularly applicable. The ‘parties’ referred to in the Convention refer to States, not companies or individuals. This is not to say, however, that British Expats have foregone their right to become naturalised citizens of their host nation. In many cases this requires five years of residence in the nation (among other additional requirements), and with the formal exit at least 2 years away you will only need to have lived there for 3 years in order to qualify by the time the UK leaves the EU. This would then entitle you to the same rights at the citizens of your host nation. It should be noted, however, that some countries such as Spain and Germany do not currently allow dual citizenship, though the latter has indicated it may be granted to Britons.

For the time being the situation remains ambiguous, not only for the British abroad but also for EU citizens living in the UK. Following Brexit, an increased amount of research has been done by many of the affected parties to discover its potential impact as well as the options available for those in search of stability, some of which have been discussed in the article above. For the moment nothing is certain, but much relies on the UK and the EU coming to reciprocal agreements regarding their citizens.

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