Updated on 1 August 2016 CET to reflect new insights
Ever since prime minister David Cameron announced that the UK would hold a referendum on whether to leave or stay in the European Union on 23 June 2016, we at Franssen Advocaten have been getting questions from quite a few British citizens living in the Netherlands as to how their legal situation would change if the UK indeed leaves the EU, and what they can do to protect their rights. Now the voters of the UK have definitely voted to leave the EU. This article, written by Jeremy Bierbach, the attorney at Franssen Advocaten with a specialty in EU law, and in particular in the rights of EU citizens, aims to provide answers to those questions.
First of all, it is important to keep in mind that the UK is still a member of the EU. British citizens are still EU citizens with the same rights as they ever had in the Netherlands. Legally, absolutely nothing has changed from the moment the referendum result became known. The UK has still not triggered Article 50 of the Treaty on European Union, in other words it has not yet formally notified the other member states of the EU that it wishes to secede from the EU, which would start the (theoretically irreversible) secession process. The consensus in the world of EU constitutional law is that the referendum result itself does not automatically have the effect of invoking Article 50. According to Article 50, this decision must be taken “in accordance with [a member state’s own] constitutional requirements”. This means that it is a matter of British constitutional law as to when and how Article 50 will be triggered. There also seems to be a broad consensus in the world of British constitutional law that the referendum result did not itself trigger Article 50. So the question remains, which one British court has already been asked to rule on, of whether the prime minister can trigger Article 50 herself, by making use of the royal prerogative, or whether Article 50 has to be triggered by an Act of Parliament. And then in either case, it is also very much the question (although more a political question than a legal question) whether new elections for the House of Commons have to be held first, either to shore up Theresa May’s democratic legitimacy or provide democratic legitimacy to any Act of Parliament.
Even after Article 50 is invoked, the negotiation process will take years, and during all that time (at least 2 years) British citizens will continue to be fully entitled EU citizens. It would be highly illegal for the Netherlands or any other member state of the EU to restrict the migration of British citizens during that period of time.
Second of all, it is as yet very unclear whether the UK will continue to maintain freedom of movement and residence of citizens with the rest of the EU by continuing to be a member of the European Economic Area (as are Norway, Iceland, and Liechtenstein), or by signing free-movement treaties with the EU and EEA (as Switzerland has done). In either of these scenarios, virtually nothing would change for British citizens currently in the Netherlands, British citizens who move to the Netherlands in the future, and their immediate family members (regardless of nationality). (British citizens in the Netherlands would only lose the right— which they currently have as specifically EU, and not just EEA citizens— to vote in and stand for elections for the European Parliament and municipal councils in the Netherlands.) A clear majority of British citizens polled, including those who favor the “Leave” camp, does seem to wish to maintain free trade with the EU; but the remaining member states of the EU, for their part, are likely to refuse to sign a new treaty with the UK that involves free movement of goods and capital, but not of citizens.
It is in the scenario that the UK does not conclude a treaty to maintain freedom of movement and residence of citizens that the legal position of British citizens already in an EU member state such as the Netherlands is a subject of some debate among lawyers. It seems fairly uncontroversial to say, in this scenario, that British citizens who move to the Netherlands after that point in time would no longer have the more or less automatic right to live and work in the Netherlands that they currently enjoy.
In order to work in the Netherlands, British migrants would have to be sponsored by a Dutch employer, and some legal procedure would be involved to test whether no citizens who enjoy priority on the Dutch employment market (i.e. EU/EEA citizens) are available for the job. Alternatively, positive criteria could be applied, as in the Dutch “highly skilled migrant” program, of the British migrant’s level of education or the willingness of the Dutch employer to pay that migrant a high salary.
In order to live in the Netherlands with a Dutch family member, they would have to satisfy the conditions of Dutch law for family reunification (mainly that the Dutch family member would have to have sufficient stable income), and they would ultimately be subject to the civic integration requirement of Dutch law.
Only British citizens moving to the Netherlands to be with an immediate family member who is an EU citizen from a member state other than the Netherlands would continue to have a nearly unconditional right to move to the Netherlands based on EU law.
As to the position of British citizens already in the Netherlands and their immediate family members: by contrast to some other legal analysts, I consider it to be highly unlikely that they would suddenly be asked en masse to leave, or otherwise to prove that they can satisfy the strict conditions of Dutch immigration law. First of all, as EU citizens, British citizens currently living in other member states of the EU were directly granted the right of freedom of movement and residence in the EU by the Treaty on European Union and the Treaty on the Functioning of the European Union, which make up the “written constitution” of the European Union. These rights were not granted to them as a favor to the UK or on the basis of reciprocity: British citizens currently in the Netherlands have a direct claim to equal treatment with Dutch citizens, unmediated by the relationship between the Netherlands and the UK. (In my 2015 PhD thesis Frontiers of Equality in the development of EU and US citizenship, of which a commercial edition is forthcoming from T.M.C. Asser Press at the end of 2016, I described this as the “vertical” nature of EU citizenship, with rights granted directly by the Treaties and not “horizontally” on the basis of reciprocity between member states.)
When the UK leaves the EU (i.e. when the UK is no longer a member state of the EU), British citizens will by any standard reading no longer be EU citizens, since the Treaty on European Union provides that “[e]very national of a Member State shall be a citizen of the Union”. But I would argue that based on the principle of EU law of legal certainty, British citizens who previously used their rights of EU citizenship to take up residence in other member states, and who quite reasonably counted on being able to enjoy those rights indefinitely, cannot be deprived of those rights by a host member state if they cease to be EU citizens. Or at least, they could only be deprived of those rights by a host member state on the same legal bases that EU citizens can currently be expelled: if their personal behavior constitutes an immediate threat to the public order of the member state (e.g. if they engage in extremely violent or dangerous criminal activity), or if they are economically inactive and no longer able to support themselves without having more than merely supplementary recourse to social assistance (and even then, all of their personal circumstances and their ties to the host member states must be examined). It is inconceivable to me that the Netherlands would take steps to expel all British citizens en masse for the mere reason of their no longer being EU citizens, but if it did, I would be prepared to fight any such expulsion in court.
What can British citizens currently residing in the Netherlands do to strengthen their position? If you are a British citizen currently residing in the Netherlands, and you have been legally residing here for 5 years (i.e. because you have either been economically active at all times, either working at least 16 hours a week or looking for work while receiving unemployment benefit [WW] from the UWV, or in times of economic inactivity, you have never been completely dependent on need-based social assistance [bijstand] from your council), then you (and your immediate family members, including non-EU citizens, who have also been resident for 5 years) have already automatically obtained a right of permanent residence. This entails a more or less unconditional right to stay in the Netherlands and to receive any kind of state benefits that Dutch citizens have a right to, and you do not have to satisfy any integration requirement such as proving that you can speak Dutch. You can still apply for a residence card from the IND (the Dutch immigration authority) as a confirmation of that right of permanent residence, and it is even more inconceivable to me that any such right will be revoked when Britain leaves. Our firm is available to assist you with that application process.
Moreover, if you have been legally resident in the Netherlands for 5 years, and are able to pass the civic integration exam [inburgeringsexamen], you can also apply to become a Dutch citizen (i.e. get a Dutch passport), by which you are guaranteed to remain an EU citizen and continue to enjoy freedom of movement and residence to other EU member states. However, in most cases, Dutch law would require you to subsequently renounce your British citizenship, which could make this a less attractive option. The only case in which you can be reliably exempted from that requirement is if you are married to or are in a civil union with a Dutch citizen, or otherwise if you qualify to become a Dutch citizen by “option”, and not naturalization, for instance because you were born in the Netherlands and lived in the Netherlands until reaching the age of 18, or if you are over 65 or have been married to or in a civil union with a Dutch citizen for over three years and have lived in the Netherlands for over fifteen years. We are also available to advise you on these possibilities.