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BREXIT

UK can cancel Brexit before March 29th without EU’s consent, ECJ rules

A new option has become available to the UK in the Brexit process as the European Court of Justice ruled that revoking Article 50 unilaterally is a possibility.

UK can cancel Brexit before March 29th without EU’s consent, ECJ rules
File Photo: Justin Tallis/AFP.

The European Court of Justice (ECJ) has judged that the UK is free, should the government choose to, to “revoke unilaterally” its notification to withdraw from the European Union.

The judicial review was lodged in the EU’s Court of Session, First Division in Scotland by a cross-section of lawyers, MPs and MEPs from the UK Parliament, the Scottish Parliament and the European Parliament.

The judicial review was led by the Good Law Project, whose director Jolyon Maugham QC released a statement calling the ECJ’s decision “arguably the most important case in modern domestic legal history.” The Good Law Project was not supported by Labour or the Conservatives: “The tiny Good Law Project and six brave Scottish Parliamentarians have taken on the Government, the other 27 Member States and the Commission – and won,” added the statement.

The review was lodged in 2017 “to determine whether the notification referred to in Article 50 can be revoked unilaterally before the expiry of the two-year period, with the effect that such revocation would result in the United Kingdom remaining in the EU,” clarifies a press statement by the ECJ on Monday December 10th.

The option to revoke the withdrawal notification “exists for as long as the withdrawal agreement concluded between the EU and that Member State has not entered into force,” or, in the case of no ratified agreement, before the expiry of the two-year notification period from the date Article 50 was activated.

The UK notified the EU of its desire to exit the bloc by activating Article 50 on March 29th 2017 and would therefore be free, should the draft exit agreement not be ratified by the UK Parliament and the European Parliament, to revoke its notification to leave before March 29th 2019.

British Prime Minister Theresa May is still keen to go ahead with the UK’s departure as her embattled government faces a decisive vote in the UK Parliament tomorrow that could well decide the direction the Brexit process could take. UK and EU negotiators have agreed on a draft Brexit agreement that would settle certain issues related to the future relationship, including on trade, the reciprocal rights of citizens and certain issues of regulation.

READ ALSO: 'It's better than no deal': Do Brits in Europe hope Theresa May wins Brexit vote

Many observers, however, believe PM May will face a humiliating defeat in Parliament on Tuesday, December 11th, when MPs vote on that deal. This could force May to either seek a renegotiation with the EU or to request an extension to the Article 50 period beyond March next year. Worse still for her, the decision could contribute to the possibility of a vote of no-confidence in her leadership or a general election.
Should a UK government decide to revoke Article 50, the UK’s EU membership would be confirmed and its status as a Member State would remain unchanged. The withdrawal process, in such a scenario, would be brought to an end, the ECJ further clarified.

The UK’s Parliament is notoriously divided on the issue of Brexit and the news that the whole process could be cancelled with a few strokes of a pen will no doubt encourage those seeking a People’s Vote, a second referendum on the UK's exit from the European Union.

READ ALSO: 'Brexit won't happen': Why not all Brits in France are panicking about the future

MPs in favour of the UK remaining in the EU welcomed the ECJ’s clarification. “A simple way out of the Brexit chaos is available,” tweeted Richard Corbett, leader of the Labour MEPs. “This is hugely important. We can now stop Brexit quickly, with no loss of existing rights & benefits,” commented Labour Peer Andrew Adonis.

The First Minister of Scotland Nicola Sturgeon suggested an extension of Article 50 to allow time for another referendum, followed by a revocation, are options “now available to the House of Commons.”

READ MORE: Pensions and healthcare: UK offers assurances to Brits in EU over no-deal Brexit

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BREXIT

INTERVIEW: The lawyers calling for a better visa for British homeowners in Spain

A group of lawyers is campaigning for a new visa which would allow non-resident British second-homeowners in Spain to freely enjoy their properties post-Brexit without having to show the high level of savings currently required.

INTERVIEW: The lawyers calling for a better visa for British homeowners in Spain

As most Britons are now fully aware of, since Brexit came into force, UK nationals who aren’t EU residents can only spend 90 days out of 180 days in Spain and the Schengen Area.

This has proven very problematic for Britons who own a second home in Spain who, when purchasing their Spanish properties, were under the impression they would always be able to split their time freely and flexibly between the UK and Spain without having to become Spanish residents (as long as they respected Spain’s residency and fiscal rules).

It used be an ideal situation for these ‘part-year dwellers’, the best of both worlds some may argue, but the UK’s exit from the EU has complicated things enormously for them. 

Estimates based on Spanish government data suggest that in 2020 the number of Britons who owned property in Spain was anywhere between 800,000 and 1 million.

There are now 407,000 UK nationals who are residents in Spain in 2022, and although there is no exact data on the number of Britons who own or rent property long-term in Spain without being residents, it could easily be in the hundreds of thousands. 

READ ALSO: Is it true Britons are leaving Spain ‘in droves’ after Brexit as UK tabloids claims?

They are undoubtedly of great economic importance to some parts of Spain, as evidenced by the Valencian government’s announcement last November that they would push the national Tourism Ministry to make it easier for non-resident British nationals to spend more than 90 out of 180 days in the region without having to apply for a visa.

There hasn’t been a public update on this front since, but Spanish law firm Costaluz Lawyers has recently put the issue back on the table, proposing a new type of visa for British second-home owners. 

The Local Spain spoke to María Luisa Castro, the lawyer who’s been leading the campaign, to learn more about it.

“We propose a new visa that caters to British property buyers who want to live in Spain but don’t have the necessary funds for the current visa options,” Castro explained. 

“We’d like to make it very simple with just two main requirements. Firstly, applicants would have to show that they have owned a property in Spain for at least three years and secondly that they have proof of an income of at least €1,130 a month, roughly half the funds required for the non-lucrative visa”.

Castro also stressed that as part of this potential visa, applicants should have to fulfil conditions for health insurance and have a clean criminal record, a standard practice for most Spanish residence visas.

“But the main condition would be property ownership and sufficient funds,” Castro emphasized.

READ ALSO: What are the pros and cons of Spain’s non-lucrative visa?

The campaign calls on British second homeowners to sign a petition to get the Spanish government to listen to the proposal and meet demands.

“We need 500,000 signatures in order for the issue to be discussed by the Spanish government, but we are also gathering signatures to give these people a voice and create awareness. We hope to be able to lobby both the UK and the Spanish governments to start bilateral negotiations” she explained.

Castro believes that there is definitely a need for this type of visa, especially for Britons, who now have to deal with stricter rules and have fewer options since they became non-EU nationals after Brexit.

“There are thousands of British property owners in Spain who bought their properties many years ago as second homes, but also as a place for future retirement or for health reasons,” she said.  

Crucially, even though the petition states non-EU citizens, Castro believes that it should really only be made available to Britons.

“It is not simply the fact that they are homeowners that means they should be considered for a new type of visa, but the fact that they had full-time ownership rights in the past, which makes the current restriction a loss of acquired rights”.  

In other words, Castro argues that those from other non-EU countries bought properties in Spain knowing that they could only stay 90 days out of every 180, but those from the UK bought them on the basis that they would have greater flexibility in this regard.  

“We hope that a visa which requires proof of finances, plus the evidence of being a homeowner with a retirement plan in Spain will be sufficient,” she said.

Another lawyer, Fernando del Canto, from Del Canto Chambers law firm, has previously argued that ownership plus health and retirement associated rights are being infringed upon by the Schengen limitations as per the European Human Rights Convention (EHRC). “A bilateral or reciprocal agreement between the UK and Spain on this particular matter is needed,” he said. 

The EHRC states that “every natural or legal person is entitled to the peaceful enjoyment of their possessions. No one shall be deprived of their possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”.

Judging by the above, it is open to interpretation as to whether it means that Britons’ rights are being infringed upon or not.

Nonetheless, Castro believes that the 90-day rule has had a huge negative impact on British non-resident homeowners and on Spain itself.

“We are frequently contacted by clients desperate to keep staying here for longer periods, as part of an acquired lifestyle and for health reasons. Now they need to explore the possibilities of the non-lucrative visa, which on many occasions, they cannot afford”. 

She believes there is a risk that Britons could stop buying in Spain, “particularly those who bought a property for retirement”, and that many of her British clients have already felt forced to sell their Spanish properties because of Brexit limitations.

READ ALSO: What worries British second home owners in Spain most about Brexit

Britons have historically accounted for the largest group of foreign property buyers in Spain. In 2018, they represented 24.3 percent of the market share. The figure dropped to 20 percent in 2019 and by late 2021 Germans had surpassed Britons as the main foreign buyers in Spain.

This however may have had more to do with Spain’s coronavirus restrictions for non-EU travellers and the UK’s own complex traffic-light system than only as a consequence of Brexit, as in early 2022 UK nationals were back at the top of the property podium again.

So despite the new setbacks, it appears that Spain is still an attractive location for budding British second-home owners, but perhaps more so now for those who can afford the golden visa or non-lucrative visa. 

But how likely is it that such legislation will be approved?

READ ALSO: Can Spain legally offer more than 90 days to Britons?

Castro firmly believes that the Spanish government will listen to foreign homeowners’ demands. “If we get a good number of signatures and the UK government is also lobbied, it will create awareness. Retired people are an increasing source of economic strength for our country.

“Currently, only those buying properties over €500,000 can apply for residency based on property purchase (through the golden visa). Other EU countries have lower financial thresholds”, she explained.

READ ALSO: What foreigners should be aware of before applying for Spain’s golden visa

Castro encourages second homeowners to do whatever they can to help this visa proposal become a reality, as well as signing the petition.

She advises them to make their voices heard through blog posts, newspaper articles and writing to local politicians.

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