Repatriation, visa requirements and exchange controls following a Brexit – would they happen?

There is a great deal of discussion about a possible Brexit, mainly among the groups that are arguing for or against the UK leaving the EU.

There is very little discussion of the effects of a Brexit on those people who live, work or own property in the EU outside of the UK.

On the rare occasions the effects are mentioned they are often talked about in dramatic terms:

  • UK citizens being forced to return to the UK and even families being split up;
  • EU countries imposing visa requirements on UK citizens even to visit EU countries let alone to live in an EU country;
  • Exchange controls on the amount of money that can be taken to/from the EU.

These points are even put forward as realistic possibilities by publications aimed at ex-pats.

It is true that any of these things are theoretical possibilities, but examining them more closely, how likely are they?

History and current situation.

1. Repatriation of UK citizens.

UK citizens have lived in western European countries for decades, centuries even. They have lived, worked and retired there with few restrictions. The requirements for permanent residency are very similar for most of the countries, ability to support oneself, adequate health cover and registration. There are very few countries that impose quotas on the number of foreign residents, requirements to have very high levels of capital, or restrictions on property ownership.

For naturalisation, the same requirements apply, plus being able to prove that you have integrated into the society/culture of your “adopted” country. This usually requires an assessment or test of language proficency (in some cases dispensed with for older immigrants) and being able to show knowledge of the history and democratic traditions of the country.

2. Visa requirements for visiting/residing in EU countries

Most people accept that it is unlikely that visas would be required to visit/live in the EU countries, unless the UK decided to impose visa requirements on EU citizens wanting to visit/live in the UK. When were visas last required by UK citizens to visit democratic, western European nations? Or even post Warsaw Pact, eastern European nations?

With a few notable exceptions in eastern Europe, they are not currently required and haven’t been for a very long while.

One of the complexities is what happens if the UK decides to impose immigration restrictions (including visas) on a sub-set of the EU countries. This is in fact a likely outcome of the current rhetoric coming from the UK, as it seems that immigration is now one of the main motivating factors for a Brexit. If the UK were to impose selective immigration restrictions on EU citizens, it’s possible that any response to those restrictions wouldn’t be country-by-country, but from the EU as a whole.

3. Exchange controls

The UK scrapped its exchange control measures in 1979. They had first been introduced in 1939. Pre-WWII exchange controls were, almost exclusively, the tools of totalitarian states such as the USSR & Germany, largely to stop the flight of currency overseas (something they are still used for in some countries, even these days).

At that time sterling was underpinning the monetary systems of dozens of countries, mainly in the Commonwealth. The exchange controls were to protect the value of the pound across the Sterling Area.

The exchange controls didn’t just regulate the amount of money you could take on holiday with you, they also controlled the exchange rate and the use of sterling for investment outside the Sterling Area.

These days, exchange controls are only envisaged by the IMF as being transitional arrangements for developing economies.

Exchange controls, or their absence, are quite independent of EU membership. The UK doesn’t have any in place now, why should there be any following a Brexit.

Freedom of Movement.

Points 1. and 2. above are usually put forward to prove the loss of freedom of movement within the EU following a Brexit.

This freedom of movement within the EU is often misunderstood and in some senses is illusory.

There is no universal, no-questions-asked, freedom of movement under the EU treaties for stays of longer than 3 months.

There is an important but limited freedom of movement:

Free Movement – EU nationals

Free movement of workers is a fundamental principle backed up by the Treaty on the Functioning of the European Union, secondary legislation and case-law. EU citizens can:

  • look for a job in another EU country
  • work there without needing a work permit
  • live there for that purpose
  • stay there even after employment has finished
  • enjoy equal treatment with nationals in access to employment and all other social and tax advantages

Free movement of workers broadly applies to the countries in the European Economic Area.

People in some occupations may also be able to have their professional qualifications recognised in other EU countries.

EU social security rules protect the rights of people moving within the EU, EEA and Switzerland.

Who has this freedom?

  • EU nationals who move to another EU country to look for a job, with certain restrictions
  • EU nationals working in another EU country
  • EU nationals returning to their country of origin after having worked abroad.
  • Their family members.

Rights differ for people who are planning on being self-employed, a student, retired or otherwise not working, where there is a need to show that they are self-sufficient and have adequate health insurance. There are limitations based on public security, policy and health grounds. Employment in the public sector may also be subject to national restrictions.

There are further regulations which give the right to permanent residence after 5 years and the right for non-EU family members (including grand-children and grand-parents) to join EU residents.

In practical terms, anybody who has lived in an EU country for 5 years or more can ask for a certificate of permanent residence.

Legitimate expectation and acquired (vested) rights

There is also the concept of legitimate expectation and acquired (vested) rights – in simplified terms, these are rights given under the various treaties, but once a person/organisation has taken advantage of the right(s) they cannot be removed, even if the entitlement or the conditions for acceding to the right(s) have changed.

Ultimately any challenge by UK citizens based on inadequate protection of their rights after a Brexit will probably have to be directed at the EU and their country of residence, as well as, perhaps even instead of, their country of citizenship.

Future posts will develop these points.

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