What Brexit means for Brexpats

The rights of British expats living in EU countries are going to change once Britain has left the European Union. Lawyer León Fernando del Canto explains how.

The news that Theresa May has imposed a deadline of March 2017 by which Article 50 of the Lisbon Treaty will need to be triggered shows that the UK is firmly on track to leave the EU by 2019.

The UK is set to become a ‘fully independent, sovereign’ country, as British relationships with the rest of Europe will be completely redefined for many years to come.

There has been a lot of focus on how businesses across all sectors imaginable will be affected, and negotiations have started to be drawn up despite so much uncertainty. But how will individuals be affected by the upcoming changes? It has recently been reported that UK expats, also known as ‘Brexpats’, will have to apply for long-term visas if they want to live in an EU country once the UK has left the EU. The very term ‘British expats’ will no longer exist as these will essentially become ‘British immigrants’ – a term that does not allude to being a high net worth individual, as ‘expats’ does.

Though initially the process of applying for a visa will remain unchanged for non-Europeans, a broad range of individuals, from those looking to live abroad to pensioners, will be affected. There are currently over one million British citizens living in various EU countries, with Spain being the most popular destination. For those who are already living abroad, a two-tiered negotiation is recommended: the multilateral approach currently in place with all EU countries involved through EU institutions to keep current status under the European Economic Area Treaty; and also a bilateral approach on a country by country basis to ensure reciprocal privileges are maintained where possible for existing expats.

Under the principle of retroactivity applicable by domestic law across all jurisdictions, there will be grounds on which Brexpats can consolidate ‘pre-Brexit acquired rights’, though Brexpats will need to appoint immigration legal representation in each individual case as this cannot be applied for automatically. One of the most important questions will therefore be the issue of residence permits and visas during negotiations of Brexit. Out of an estimated 300,000 Brits living and working in Spain, 20 per cent are pensioners in the Costa del Sol.

Brexpats’ lives in Spain are funded by UK pensions, and thus any fluctuation in currency caused by Brexit will have a direct effect on the income they receive. Following the UK’s vote to leave the EU, it will be up to the Government to decide whether pensions will be frozen (as is the case for retirees in Canada, for example) or whether state pensions will remain protected from wage or price inflation.

Reciprocity will apply in the UK and EU immigrants will need to go through a similar process, and the UK will have to have its own agreement with each individual country. In the case of Spain and the UK’s relationship, given the high number of Brexpats living in Spain and Spaniards living in the UK, it is most likely that privileges will be secured between the two countries in bilateral negotiations (though this cannot realistically be the case for all countries). For UK expats wanting to work in the EU, host countries may well apply stricter regulations to establish business. Expats might forfeit their right to work in the EU automatically, which would mean a process similar to the Green Card in the USA is applicable.

The visa system in Spain is currently governed by the Organic Law 4/2000 and its implementing regulation, promulgated by Royal Decree 557/2011. To apply for a visa, which will allow Individuals to stay for a period of up to three months, application needs to be made in person or by representative and a fee of €60 is payable. This excludes members of the EU or countries in which the Schengen Agreement applies.

The legal status of British expatriates (present and future) remains the same for now, and will until the London-Brussels negotiations which are expected to take place in January next year. For the time being, Spain’s prime minister has said that expatriates can enjoy the same privileges and rights they have had up until now as EU citizens. Once the UK has exited the EU however, these rights will depend on the agreement that the UK comes to with the EU and each individual member country. The sooner the British government engages with specific countries and in particular embraces a dialogue with Spain, the more likely Brexpats’ rights will be protected once the transition of the UK leaving the EU has been made.

León Fernando del Canto is a partner at Del Canto Chambers