Caught Between The Lines: The Fate of British and EU Expats Post-Brexit

This week, the UK parliament approved a bill giving Theresa May the authority to trigger Article 50 of the Lisbon Treaty, in accordance with the EU referendum result on June 23rd last year. Seven months on, and the fate of EU nationals living and working in the UK, as well as British nationals in other EU countries, is no closer to being clarified. It is quite incredible that such a sensitive issue has not be dealt with preferentially and settled before any official discussion of the UK’s divorce with the EU has taken place.

Fairness demands that we deal with another issue as soon as possible too. We want to guarantee the rights of EU citizens who are already living in Britain, and the rights of British nationals in other member states, as early as we can. I have told other EU leaders that we could give people the certainty they want straight away, and reach such a deal now. Many of them favour such an agreement – one or two others do not – but I want everyone to know that it remains an important priority for Britain – and for many other member states – to resolve this challenge as soon as possible. Because it is the right and fair thing to do.

Theresa May

If Theresa May is right about some EU members not wishing to discuss the fate of expats, these countries should be ashamed of themselves. There is not one single day that I do not have at least a fleeting thought about our current situation as UK expats working and living in the EU. I also feel deeply for EU nationals who have already settled in the UK but have not taken up British citizenship. I am also a French national and that offers me some sort of insurance. Having said that, I have never held a French passport and I am registered as a British citizen here in the Netherlands. Furthermore, having to acquire a French passport will cost me time and money. My biggest concern, though, is the continuing validation of my dental degree. Having qualified in London, I’m dependent upon mutual recognition of dental qualifications within the EU. The Council of European Dentists can up to now provide no insights into what may happen to this recognition once the UK has left the EU. Being in constant doubt about the future is both unpleasant, destabilising, and completely unnecessary. It would have been commendable if the EU and the UK  had given assurances to all concerned. But that is not likely to happen, and, what may be even worse, is that expats like me will be used as “bargaining chips” in a tit-for-tat squabble between the UK and the EU.

If you think that I’m exaggerating the seriousness  of our situation, let me give you just one example of the complications that can arise in a post Brexit Europe. It concerns a Dutch national, Jet Cooper,  who has been a UK resident for 30 years, raised 3 children, and whose husband is seriously ill. She may be forced to leave the UK after Brexit because being without a comprehensive sickness insurance (CSI), she will not qualify for permanent residency. Although the UK’s National Health Service (NHS) provides free care for all and is maintained by tax payers’ money, this does not apply to EU nationals who are not economically active. Under the Free Movement Directive, EU citizens who live in another country but who do not work there, may be required to have sufficient resources and sickness insurance. The CSI, imposed by the UK, is viewed by Brussels as breaching EU law because the UK fails to recognise the entitlement to NHS treatment as sufficient insurance.

I wanted to find out more about the exact rules concerning freedom of movement within the EU (a bit late after 33 years?). This is what I found on an official EU website:

Citizens of the EU and their family members have the right to move and reside freely within the territory of the EU, subject to certain conditions. This right is conferred directly on every EU citizen by Article 21 of the Treaty on the Functioning of the European Union. As specified in directive 2004/38pdf, the following rules apply:

  • Article 6: EU citizens can reside on the territory of another EU country for up to three months without any conditions other than the requirement to hold a valid identity card or passport;
  • Article 7: To reside in another EU country for more than three months, EU citizens are required to meet certain conditions depending on their status (i.e. worker, student, etc.) and may also be required to meet certain administrative formalities;
  • Article 16: EU citizens can acquire the right to permanent residence in another EU country after legally residing there for a continuous period of five years;
  • Article 3: The family members of EU citizens have the right to accompany or join them in another EU country, subject to certain conditions.

EU citizenship and the right to free movement are regularly taken into consideration in the judgments of the Court of Justice.

No help for our poor Dutch citizen from the European Court of Justice, I fear. The UK has made it clear that the Court wont be recognised, post-Brexit. What makes things worse is that Jet Cooper cannot even apply for British citizenship because, since 2015, you must have a permanent residency permit before you are allowed to apply.

When I first came to the Netherlands, I also applied for a residency permit. After 5 years it had to be renewed. I seem to remember that I renewed it once, only to be told later that such a permit wasn’t really necessary. Recently, in connection with a change in my mortgage, the bank did ask me to provide a copy of my residency permit. I immediately contacted Immigration asking whether a permit was really mandatory, and, again, they said no. But I got one anyway, just to be on the safe side.

The fact that the EU, via the commission, or the UK government have not been unilaterally willing to guarantee the rights of all EU and UK expats is in sharp contradiction with what the German enlightenment philosopher Immanuel Kant described in his “categorical imperative”. For Kant, if an act was morally right, it had to be carried out no matter what the consequences. It is quite clear that Theresa May is under the impression that in not guaranteeing unilaterally the rights of current EU nationals in the UK, she is “keeping up her sleeve” some sort of powerful negotiating weapon should she be in need of it. As for the EU, they probably are thinking along the same lines. EU nationals and UK expats are the victims of this twisted form of thinking and are literally caught between the lines of a machiavellic confrontation between Theresa May’s UK and Jean-Claude Junker’s EU. If the tension between the conflict lines causes the battleground to cave in, I and others like me risk falling into a big black hole.