Brexit, a view from a QC specialising in EU law

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George Peretz QC

GEORGE PERETZ QC a barrister at Monckton Chambers in London who specialises in EU law and has advised the UK Government and many private clients on free movement issues has kindly supplied the following advice which EWN is delighted to share with our readers.

One of the first things you learn when you study EU law is that one of its main aims is to protect EU citizens who move to other EU countries. In one important European court case, it was said that any EU citizen can claim “civis europeus sum”  – I am a European citizen.  So every Brit working, living or owning property in Spain has the basic right to be treated in the same way as a local and that basic right means that they can get a job, start their own business, or buy a property on the same basis as Spaniards. 

They can’t be made to pay more taxes than Spaniards.  In most cases, they can use public services such as health on the same basis as Spaniards and they can even vote in local elections.

Depending on the final outcome of any post-Brexit deal, all of those rights could vanish if the UK leaves the EU.  Brits wanting to buy property in Spain could be stopped from doing so in certain areas (as they are in Switzerland).  Brits could be made to pay unfair extra on their rental incomes (as France tried to do before it was stopped by the EU) and they are likely to find access to local health services becomes more expensive and difficult, as it is anywhere outside the EU.

Further, Spain – as a member of the Schengen zone – is bound by EU rules to administer a work permit system for highly-skilled workers from non-EEA countries.  It is also entitled to stop less-skilled workers from outside the EEA from working at all. 

You could avoid some of those problems by applying for long-term resident status.  But it is largely up to Spain how it deals with such applications.  For example, it could impose requirements that you speak excellent Spanish and are integrated into Spanish culture and even as a long-term resident you wouldn’t have rights you enjoy as an EU citizen, for example to have members of your family come and join you.

What do Brexiters say?

First, they point out that Brits lived in Spain before the EU.  That’s true. But they had no automatic right to work, run a business and so on without the say-so of the Spanish government.  Rich Brits – like the prominent Out campaigner Lord Lawson, with his house in France – are probably fine.  Countries always welcome the wealthy, and they can pay extras taxes and charges.  Less rich Brits may well find things harder. 

Second, they argue that the Vienna Convention on the Law of Treaties will help. But the problem with that argument is that Article 70 of that convention – the clause they rely on – only protects rights and obligations “created through the execution of the treaty prior to its termination”.

It is very unclear what those words mean in the case of Brexit. They would probably stop Spain from confiscating a house bought before Brexit – although the European Convention on Human Rights would probably prevent that anyway. But it is hard to see that that clause would give Brits any continuing right to be treated as an EU citizen in the years after Brexit, when it came to matters such as the rights to work, not to pay extra taxes, to use public health care, to buy further property or even to carry on living in Spain.

Further, it would be for the Spanish courts and lawmakers to interpret and apply this rule – there would be no right to complain to the EU if it wasn’t respected. So the claim that the Vienna Convention offers any solid protection to expat Brits is simply incorrect and even Brexiters do not claim that anything in the Vienna Convention could help Brits who merely plan to live or work in Spain but have not yet done so.

Third, one can also argue that the UK would do a deal with EU countries to protect the position of British expats but since Brexiters want to be able to stop or control migration from other EU countries to the UK, and since any deal would have to be even-handed, we can’t expect that any such agreement would give Brits living in or planning to live in Spain anything like the same rights they enjoy now. 

The truth is that Brexiters care much more about meeting migration targets than they do about the position of the one to two million Brits living on the continent, or the millions more who would like to move to the continent when they can.

My advice to British expats in Spain, and those who would like to join them, is clear.  A vote to stay in is the only way to ensure that your rights are protected: if Brexit happens, your position in Spain is likely to be a lot less legally secure than it is now. And any British expat who left the UK less than 15 years ago has the right to vote: just go to www.gov.uk/register-to-vote

19 COMMENTS

  1. So essentially once we have fully excited the union and after say the two your process has been completed to split from the union we will be like any other foreign national entering Europe . we I can remember entering Spain before it was a member of the EU.
    It’s not a huge deal

  2. Perhaps all those over 75 years of age, should refrain from voting. Staying in Europe or coming out should surely be a decision for the young as they have many years of life which will be affected one way or the other, by the result of this vote. The elderly should let them decide on their future.

  3. Firstly if you can vote in this referendum then you should, this is a very important referendum, in fact probably more important than a general election as you will probably never get the chance to vote again on this! Vote with your head & your heart, talk to your family and take interest in the information that comes out from both sides before the election, remember it is not just your lives that are affected by the EU it is your families and the whole UK both now and in the future… but whatever you do, do not listen to people like this telling you you “it might”, or “if they” or “you may” because those are answers from people who are not telling you the actual facts. You need to put the facts together, think about things like the fact the UK purchases billions more from the UK then the UK does from the EU so that alone will make the EU work with the UK, Spain needs British people in Spain as without our money they will have even more problems!
    The EU and the EEA are two different things yet this person appears to connect them when they are different. Use Google to search terms like “what is the EEA” and “what is the EU” so you can understand the differences these people don’t tell you.

    I have to say I actually found this funny, the IN brigade say the OUT brigade only have “could” and “if” as their grounding to GO, well all this is full of is “could”, “if” and even a “may”, so this QC specialising in EU law can’t even say “will” or “would” 😉

  4. Well, after several attempts to register to vote I in finally succeeded, not the best to use or is this because they don’t want us to vote? If you do try to register Do NOT give up! But please DO vote! It’s OUR future even if you have never voted before!

  5. Oh dear, see I made an error: It should read “like the fact the UK purchases billions more from the EU then the EU does from the UK so that alone will make the EU work with the UK” As Homer would say… D’oh

  6. Please vote, but understand that ‘fear articles ‘ like this one are just that , they have no basis in fact this is a piece of fiction designed to scare. Look at the real facts and then make your’e minds up.

  7. This isn’t about balance sheets, trade deals, other peoples opinions. It is whether you as an individual, think that current EU policy with regard to the Turkish question,is right for you. If you have the slightest unease then you must vote out. But don’t take any notice of me, as I am scared shitless. You must make up your own mind.

  8. One thing I want to pick up is about Spanish taxes and currently not being made to pay a tax that spanish citizens do not pay. Well we do .
    Every yeasr we have to pay income tax on owning a property .Spanish citizens do not pay this. Is this another case of the southern European nation ignoring EU rules ?????? How can we stop this .

  9. I for one will be voting to leave the E.U.
    All of Cameron’s negotiations have not covered two of the most important questions: Immigration and the Human Rights Commission.
    Britain needs to be able to control its own borders without pressure from Brussels, and deny entry to all but the most needy.
    The HRC is one of the biggest thorns in our side for the following reasons. For years we have been unable to deport immigrant criminals because of Brussels interference, and murderers have gotten off lightly and never received a proper jail sentence. It took us ten years to get rid of Abu Qatada and Abu Hamsa as a prime example.
    All this interference in the British Justice System has dragged us down to make the whole system a farce.

  10. I would too Roy but I can’t vote @@ 😉 😉

    I understand your concerns on immigration but be honest although important it would be far down my list of reasons to leave.

    Personally I think every country should be able to make it’s own laws “inc’ civil rights” & those laws be controlled by the country, basically for a country to have their own sovereignty.

    The EU is unbelievably corrupt, permitted not only by member countries but by the EC and Brussels MEP’s themselves. Brussels states the EU is about working together, what they mean is if an official, an MEP or EC member is caught doing something corrupt or wrong then you shouldn’t tell anyone on the outside as that is not working together! This alone is enough for me not to want anything to do with the EU.

    Government takes money from you, gives it to the EU, the EU then gives it to you again telling you it is EU money, basically manipulation, deliberately misleading, a form of corruption.

    Bureaucracy, people who are for the EU will tell you there really isn’t a lot of EU bureaucracy… but there is, loads of it!

    In an emergency “there already has been one” they have shown they are not in a position to take a decision and move forward instantly on it… how long has it taken for these people to move on the immigration problem & they still haven’t a clue what they should do? You cannot let ppl like this have any control of your country or its laws!
    I need another several thousand more characters 😉 😉

  11. What a load of rubbish we first came to Spain to buy a house in 1985 and we had no problems then, in fact it was easier than now. that we are all in the EU. Spain won’t kick anybody out they need our money too much. And I wouldn’t be surprised if Britain leaves that Spain won’t be far behind.

  12. Phil, your rude response was uncalled for, this topic is too serious for insulting one liners. I am as entitled to my opinion as you are – it’s called a discussion and I do not think 50-75 year olds would look kindly on being called inexperienced.
    Why don’t you tell us what you think Phil instead of shooting from the hip.

  13. The youth probably understand what Europe mean more than you think you you do. I have not seen you write anything of use as of yet. Experience is all it made out to be it can also make people jaded and fresh your eyes might see something that older more opinionated individual fail to see.

  14. Very easy to Register, we have registered twice via the internet. The information required is your name, d.o.b, NI number and last address registered. I did both of ours in five minutes. You will receive an email of confirmation. SIMPLE. In the UK now each individual is responsible for their registration and has to supply D.O.B and NI number. Hence no more children and cats and dogs registered. How do I know 25 years doing the job.

  15. I came across a PDF on Gerard Batten’s “MEP” web site called “EU Referendum: Frequently Asked Questions”, I don’t want to post a link to the actual PDF as EWN will probably not allow the post but if you do a Google search for “gerardbattenmep, Referendum FAQs 24th March 2016” the first link returned should be to his web site then at the top of that pages listed posts should be the “EU Referendum: Frequently Asked Questions” topic with a link to “Continue reading —->”, if you click that then you will notice there is some text that says “I have compiled a list of the most frequently asked questions likely to arise the Referendum campaign. You can read them by going to this link”, click over the word “link” to load the PDF document.
    This document asks 34 questions about leaving the UK, many of which are of interest to expats… it might be worth reading for those who are going to, or can vote… in fact not only expats but it might be interesting to everyone. 😉

  16. @Richar Newton – What? I am Spanish, I own two properties there and I pay income taxes for both as I actually live in another EU country. One is rented and pay 24,75% every three months of the net rents. And for the one which is not occupied, I pay the sa

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