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Brexit and the Right of Onward Movement

Friday 06 April 2018

Concerns that after Brexit UK nationals in France may not have the right to relocate to another European country are misplaced.

Last month the British and European authorities agreed the main terms of the withdrawal agreement concerning citizens’ rights.

The agreement means that the UK will be treated as a Member State until the end of the transition period on 31st Dec 2020.

UK nationals would acquire the rights of permanent residence after accumulating five years’ continuous lawful residence, before or after the end of the transition period.

However, missing from the agreement was Article 32 from previous drafts, that explicitly excluded onward movement rights for UK nationals in Europe.

This earlier clause had stated that:

"In respect of United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another Member State, the right of establishment in the territory of another Member State, or the right to provide services on the territory of another Member State or to persons established in other Member States."

Whilst some campaign groups have criticised the failure to address the issue of onward movement rights, the omission of a clause which restricted such rights may well be a positive sign.

It may also not be unrelated to the fact that EU legislation already provides such rights for 'third-country' (non-EU) nationals who have been legally resident for at least 5 years; to have excluded such a right to UK nationals would have been contrary to EU law.

These rights are enshrined in Council Directive 2003/109/EC of 25 November 2003.  Whilst the UK (along with Denmark and Ireland) opted out of the Directive, France and all other Member States have signed up to it, so it applies to UK nationals resident in France.

Article 14 of the Directive states:

“A long-term resident shall acquire the right to reside in the territory of Member States other than the one which granted him/her the long-term residence status, for a period exceeding three months, provided that the conditions set out in this chapter are met.”

Those conditions are:

“(a) exercise of an economic activity in an employed or self-employed capacity;
(b) pursuit of studies or vocational training;
(c) other purposes.”

The ‘other purposes’ is not stated, so it is without limitation in its definition, and would therefore include those who relocate but who do not pursue an economic activity.

Such an interpretation is confirmed by the introductory remarks in the Directive, which states that:

“Provision should be made that the right of residence in another Member State may be exercised in order to work in an employed or self-employed capacity, to study or even to settle without exercising any form of economic activity.”

That right of residence also includes family members, “in order to preserve family unity and to avoid hindering the exercise of the long-term resident's right of residence.“

Moreover, the 5-years residence requirement also permits periods of absence, stating: “Periods of absence from the territory of the Member State concerned shall not interrupt the period referred to in paragraph 1 and shall be taken into account for its calculation where they are shorter than six consecutive months and do not exceed in total 10 months.”

There are conditions of ‘minimum resources’ and ‘comprehensive sickness insurance’ for obtaining permanent residence status and relocating rights to another country, but these conditions already apply to economically inactive households seeking to live outside of their home country.

The ‘minimum resources’ requirement is left to Member States themselves to determine, but the Directive states that they “may take into account the level of minimum wages and pensions prior to the application for long-term resident status.”

In France, the minimum income for third-country households to be legally resident is equivalent to the minimum wage, currently €1,498 a month.

The condition on sickness insurance is similarly without elaboration in the Directive, but Member States are under an obligation not to discriminate against long-term residents, who have a right to "enjoy equal treatment with nationals”.

In France, there is a right of access to the health system after 3 months legal residence, although, as we point out elsewhere, the rights of EEA early retirees have always been a matter of legal dispute. In a stroke of irony, it may well be that early retirees from the UK relocating to France after the transition period will have greater rights of access to the health system than present UK early retirees!

Accordingly, although the draft agreement may well be silent on the rights of onward movement, subject to the final terms of the agreement, UK expatriates in Europe will obtain rights under existing European law, albeit it will be subject to obtaining prior permanent residence in France.

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