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BREXIT

Just how guaranteed are the rights of Britons living in Europe?

With the UK government prepared to override parts of the Brexit Withdrawal Agreement and the EU responding by launching legal action on Thursday, should Britons in the EU be worried about their future rights?

Just how guaranteed are the rights of Britons living in Europe?
Britain's Prime Minister Boris Johnson greets European Commission President Ursula von der Leyen outside 10 Downing Street in central London. AFP

Ever since the UK government provoked anger in Brussels by admitting it was prepared to break international law to override parts of the Brexit Withdrawal agreement, Brits living in the EU have understandably become twitchy once again.

After years living in limbo, their rights and futures were eventually guaranteed by the ratification of the Withdrawal Agreement in January 2020.

The Withdrawal Agreement sets out the principle, with certain caveats, that British people who are already resident in the EU by December 31st 2020 can stay there.

As such it is a crucial document to the nearly 1 million British people who have made their homes in Europe – but the escalating row between London and Brussels over the document is making many nervous.

After the UK government put forward legislation that would give them the power to override parts of the Withdrawal Agreement, campaign group British in Europe said they had been inundated by queries from worried UK residents around Europe.

“We have been receiving anxious enquiries from our members about what a breach of the Northern Ireland Protocol could mean for the implementation of the citizens' rights chapter of the Withdrawal Agreement and for their futures,” said the statement.

“The Member States will rightly now question whether the UK will honour its obligations towards over three million EU citizens living within its borders.”

But how worried should Britons living in Europe be now that the row has escalated to the point where by the EU announced on Thursday it had launched legal action against Boris Johnson's government?

Firstly there is the question of how significant the launch of this legal action really is.

Seasoned commentators on Brexit and legal experts suggest the move by the EU, just like the UK government's controversial internal market legislation, is all part of a sideshow around the tense but ongoing talks to reach a trade deal.

“Ultimately this may be political theatre on the EU side, to match the UK. There are lots of 'off ramps' in an infringement proceeding – most of these cases are settled before they ever reach the CJEU. It's possible for the case to be dropped if the bill is amended as part of a deal,” said Steve Peers, Professor of European human rights law at the University of Essex

 

In other words both sides are flexing their muscles to demonstrate they are prepared to walk away from talks on a trade deal, in the hope that it will push the other side towards accepting an agreement on their terms.

Can the Withdrawal Agreement be suspended?

But what about the law regarding the Withdrawal Agreement and resolving disputes between the two sides when they arise?

Under the Brexit divorce deal agreed and ratified by the UK and the EU 27,  if a dispute arises between the EU and UK over the implementation of the Withdrawal Agreement then it can be settled by a joint committee.

If the committee cannot resolve the row then an arbitration panel selected by each side will be set up.

This panel has the job of issuing binding decisions and if those rulings are not complied with, then potential penalties and sanctions could follow.

In a worse case scenario parts of the Withdrawal Agreement could also be suspended, but crucially the part relating to citizens' rights cannot be.

In an even more extreme scenario, experts believe the Withdrawal Agreement provisions are also protected under the Vienna Convention of the Law of Treaties, which means the UK or the EU 27 would not simply be able to terminate the treaty.

What about implementation? 

What is likely to be more of a real concern to Brits around the EU right now is not the legal wrangle or the fraught trade talks, it's the moves made by each EU country to enshrine the rights guaranteed by the Brexit agreement into national law.

There are no particular concerns that EU countries won't do what is necessary, even in France which has yet to start accepting residency applications for the 150,000 to 300,000 British residents.

But if issues do arise and there are disputes over citizens' rights then Brits in the EU do have some protection.

A special committee will try to resolve disputes and for the next eight years the Court of Justice of the European Union will continue to have jurisdiction over disputes involving citizens' rights in both the UK and the EU.

When it comes to implementing the Withdrawal Agreement the EU Commission has the job of closely monitoring the measures taken in each country.

The commission says: “The implementation and application of citizens' rights in the EU will be monitored by the Commission acting in conformity with the Union Treaties. In the United Kingdom, this role will be fulfilled by an independent national authority. 

“The Authority and the European Commission shall inform each other annually through the Joint Committee established by the Withdrawal Agreement of the measures taken to implement and enforce the citizens' rights under the Agreement. Such information should include in particular the number and nature of complaints treated and any follow up legal action taken.”
 
But what about in reality?
 
 
While governments and the EU commission may genuinely be looking after the rights of Brits in the EU, there may however be problems at a more local level.
 
Brexit and its impact is understandably hard to get to grips with for business owners around Europe, some of whole may jump to the wrong conclusion that because Britain was leaving the EU, that meant British citizens had lost their right to work in the country.
 
 
And the confusion over the status of British people has already lead to some people being wrongly asked to supply extra paperwork in relation to employment, driving and receiving benefits.
 
These type of incidents will likely become more and more common and it will often be left up to individuals to explain our rights.
 
But all in all, Brits in the EU shouldn't worry too much about the impact the escalating spat between Brussels and London will have on their rights to stay in the countries they have made their homes.
 
But can the same be said for EU citizens in the UK?
 
“It's unlikely that there will be any push-back on citizens' rights from the EU side,” said Kalba Meadows from British in Europe.
 
“It's more a question of good faith (or lack of it) and the message that it sends to the EU that if the UK can't be trusted to honour one part of the Withdrawal Agreement, can it really be trusted to implement the citizens' rights parts?”

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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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