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    • by Dr. Jeremy B. Bierbach, attorney at Franssen Advocaten

      (date of last revision: 3 October 2018)

      DISCLAIMER: In this article, I am only describing what I would argue in court as a qualified, experienced lawyer. This article is not meant to be a resource for anyone else, least of all a non-lawyer, to argue their own case, and I will not accept any liability for anything that I write here that someone uses on their own. Every individual’s case is unique, and although I am saying here what the applicable legal norms are for certain abstractly defined categories of persons, there may always be individual circumstances that negate or supersede those norms. This is also a heavily digested legal analysis, aimed at non-lawyers, in which I am largely not providing the sources of published case law and legislation that underpin my analysis.

      A few months before the United Kingdom held its referendum on whether to leave or remain in the European Union, I wrote a blog entry on what a majority vote for Leave would mean for British citizens in the Netherlands (more as an academic exercise, since I didn’t expect it would actually happen).

      Apparently that blog entry attained a somewhat viral status in the British community, and I quickly updated it in the days after the referendum.

      However, surprisingly few British citizens took me up on my suggestion of having me help them apply for a residence card proving their permanent resident status as an EU citizen (duurzaam verblijf). And in recent months, as news about the negotiation process between the UK and the EU27 begins to sound increasingly dismal, the number of panicked phone calls and emails from Brits to my law firm has increased.

      Many of them really do seem to believe that in the event of a no-deal Brexit, scenes will break out in the Netherlands on 29 March 2019 that resemble the horrible aftermath of the dissolution of Yugoslavia: that all Brits will be marched into the North Sea at the point of a bayonet, or something like that. From my perspective as a Dutch immigration lawyer (with a master’s degree in Dutch constitutional and administrative law and ten years’ experience) and a scholar of EU law (with a PhD in European constitutional law and a published book based on my thesis), I don’t see that happening. But don’t take my word for it (few do)—sit down and read this article in which I try to explain the legal norms that underpin my analysis, the legal norms that I am prepared to invoke in court to stop the post-Brexit expulsion of any British citizen from the Netherlands. (Note that ANY decision to expel an alien from the Netherlands can be appealed in court, with an injunction to prevent deportation until the case is heard, so that is where any such arguments would come into play.)

      To start with: many of you have probably been getting most of your news coverage of the current negotiations going on between the UK and the EU(27) from British news media. Part of these negotiations concern the deal that will be made concerning continued rights of residence of EU citizens in the UK, and of British citizens in the EU27.  Before you think that your future status in the Netherlands is completely dependent on what is agreed on at that negotiating table, I have to remind you of one very, very important thing: the significance of any such deal, if it is struck, is inherently asymmetrical. (This also connects to what Dutch journalist Joris Luyendijk has noted about the way in which the British government has fed the British news media the impression that Brexit is a process of “divorce” between equals, a process that implies some sort of reciprocity, when it is simply a unilateral withdrawal of one member from a club.)

      A deal will be of much greater significance as a source of law for nationals of the EU26* living in Britain. It is Britain, after all, that is leaving the EU, meaning that on B-Day, Britain will revert to a Hobbesian situation in which EU law, as a norm of international law limiting British sovereignty and guaranteeing EU citizens the right to live and work in the UK with no special permission or admission procedure, no longer applies if no other agreement has been made. After all, “taking back control”, if that is what Brexit is to mean, means restoring unrestricted British sovereignty, meaning the sovereignty of Parliament to make any kind of laws it likes governing the admission and expulsion of aliens. (In reality, of course, we know that Parliament will also give away a great deal of its power, once wrested back from Brussels, to the British government under so-called “Henry VIII clauses”.) Parliament would be entirely free, in British constitutional theory, to commence the expulsion of EU26 nationals from Britain if no deal was made.

      (* Only 26? Yes: it will be with the notable exception of citizens of the Republic of Ireland, who enjoy virtual rights of citizenship in the UK based on a reciprocity arrangement that pre-dates the accession of both countries to the European Economic Community.)

      In the EU27, however, EU law will continue to apply and will continue to bind the remaining member states. Would any EU27 member state be free, unconstrained by EU law and other norms of international law, to legislate the immediate expulsion of all British citizens? Putting aside the question of whether the political conflict between the departed UK and the EU would even get so dismal as to warrant such a tit-for-tat, I would argue that that is very unlikely that EU law and other norms of international law would allow that.

      And in any case, to make myself clear, EU law certainly does not, in my view, mandate the expulsion of British citizens settled in a given member state at the moment they lose their EU citizenship; the one thing that Brits are guaranteed to lose immediately on no-deal B-Day is their automatic freedom of movement, i.e. their right to move to and take up residence in a newmember state without having to ask permission. At its most simple, this is based on the logic of movement and the points at which it can be restricted, just as the termination of freedom of movement of goods between the UK and the EU27 on B-Day does not mean that all of the jars of Marmite and boxes of Weetabix already on the shelves of EU27 supermarkets have to be rounded up and destroyed or taxed more heavily.

      Nor do I even think that the legislature of the EU (i.e. the European Commission, proposing legislation which is then voted on by the European Parliament and the Council of heads of state and government) would be free to pass legislation compelling member states to expel British citizens: such legislation, or expulsions based on it, could be challenged on the basis of the EU Treaties, and national courts could refer questions to the Court of Justice of the European Union, which in turn would be very likely to strike down or limit the applicability of such legislation.

      In a reasonable worst-case scenario, therefore, you will not be a complete persona non grata (i.e. inherently unwelcome and expellable based solely on your nationality) on no-deal B-Day, but you will revert to being just like any other non-EU citizen in the Netherlands. What are the legal norms governing the rights of non-EU citizens in the Netherlands who have been living here as aliens with a valid right of residence?

       

      Quick links to sections below:

       

       

      To start with the level of non-EU citizens who are the most protected from expulsion in almost indisputable legal terms:

       

        • If for over twenty years, you have been legally residing in the Netherlands, in such a way that you could be reasonably sure that you really did have a right to live here (i.e. if, as an EU citizen, you have been residing here, at least for the first five years, to either work, look for work, be self-employed, study full time, or be self-supporting), then in fairly absolute terms, you have a right to “private life”, as it’s called, based on Article 8 of the European Convention on Human Rights (ECHR; which is a different legal order than EU law, protecting humans as such, not just EU citizens) and the case law of the European Court of Human Rights interpreting it, that cannot be interfered with by the Netherlands. In other words, your life has become so rooted in the Netherlands that under almost no circumstances can the Netherlands expel you without violating Article 8.

       

        • If for over three months, you have been legally residing in the Netherlands (again, you will have had that type of legal residence as an EU citizen by living here and engaging in any of the activities named in the last point), andyou have a genuine close family relationship (in any case: if you are the spouse, civil union partner, partner in a cohabiting relationship, child under 18 living at home, or parent of a child under 18 living at home) to an Dutch citizen who lives in the Netherlands, or a non-EU citizen who has a strong right of residence here, then you have a right to “family life”, also based on Article 8 of the ECHR, that can only be interfered with by the Netherlands if it has a very, very good reason to specifically want to expel you, which also has to be provided for by law (i.e. it can’t be a completely arbitrary decision of a Dutch government agency).

       

      • If you are the close family member (spouse/civil union partner/partner in a long-term cohabiting relationship; child under 21; otherwise dependent child or grandchild; dependent parent or grandparent; or financially supporting parent to a child) of an EU citizen in the Netherlands who is not Dutch, i.e. who is making use of their freedom of movement and residence in the Netherlands (i.e. the same right that you were making use of up until B-Day), then EU law provides that you have a right of residence as the family member of an EU citizen. This right can only be interfered with by the Netherlands if your very presence constitutes a real and present threat to Dutch society (and you getting convicted of one murder probably wouldn’t be enough to constitute such a threat; you’d have to be something of a serial killer).

       

      Finally, to go on to the level of any remaining British citizens who are arguably protected from expulsion by EU law (in other words, there is some room for differing interpretations of EU law, but I think I could make a good case for it in court):

       

      EU law provides that all EU citizens who live in a host member state for five years (again, engaged in one of the activities above) automatically obtain a right of permanent residence (specifically called duurzaam verblijf in Dutch).

       

      From this point in time, your right to stay is unconditional (you no longer have to be engaged in one of the aforementioned activities or be self-supporting), and you also have an absolute right to equal treatment with nationals of the Netherlands as far as entitlement to any form of social assistance or student financing is concerned. You can apply for a residence card confirming that you have this right. (The card is then what we lawyers call declaratory, meaning that it merely confirms a pre-existing right, not constitutive, or itself creating the right. If the card were to expire, the right does not go away.)

       

      I am of the opinion, and I am willing to defend this opinion in court, that on the basis of EU law (i.e. as it will continue to be valid in the EU27), an EU citizen who has obtained a right of permanent residence in the Netherlands based on Art. 16(1) of Directive 2004/38 (the relevant EU legislation) can never lose that right as long as they stay in the Netherlands, even if that person loses their EU citizenship.

      I also have the following argument to support the notion that “unconditional means unconditional, forever”: the Directive (Art. 16(2)) also provides for the possibility of the non-EU citizen family member of an EU citizen to obtain a right of permanent residence after five years, more or less the same right.

      Therefore, it does not make sense that if (say) a British woman moved to the Netherlands with her Brazilian husband and worked here for five years, both persons would be eligible for duurzaam verblijf after 5 years (which for the Brazilian husband, by the way, also means a fully independent right of stay, which would be unaffected by any subsequent divorce from or departure of the British woman), but then the British woman would lose her duurzaam verblijf upon Brexit happening, simply because she is no longer an EU citizen, and the Brazilian man would not.

      The type of duurzaam verblijf that non-EU citizens get is a slightly second-class form of that right, however: according to the wording of the relevant legislation, whereas an EU citizen can move away from the host member state and only has to, basically, set foot on the territory of that member state once every two years to keep their right, a non-EU citizen would have to actually re-establish residence in the host member state within two years after their departure in order to keep their right of permanent residence.  So I think that it is arguable that Brits can be downgraded to that, i.e. will not be able to keep a perpetual right of return to the Netherlands just by visiting every so often, but will only be allowed to really live elsewhere for two years max at a time.

       

      By the way, to respond to one form of legal panic that I have encountered among Brits who already have their duurzaam verblijf cards: many of them note to me that the back of their card reads “duurzaam verblijf burgers van de Unie”, i.e. “permanent residence for citizens of the Union”. They take this wording to itself have autonomous legal significance, i.e. that the right will cease to exist as soon as they are no longer EU citizens. I do not agree. It is not the words written on a piece of plastic to describe the right that constitute the right: it is the legislation I analyzed in the last paragraph that constitutes the right. The card, as I noted before, is only declaratory of the right. For that matter, I could note that the card issued to the hypothetical Brazilian husband I used as an example in the last paragraph would also have exactly the same words on it, even if the Brazilian is not, and has never been an EU citizen.

      As to what the website of the IND says:

      You are a British citizen holding an EU-document for permanent residence
      
      You have a right of residence as an EU-citizen until Brexit. At this moment your residential right in the Netherlands after Brexit is unclear. This depends on the result of current negotiations between the UK and EU.

      I still would not consider this to be a cause for concern. Recall that the IND (the Dutch Immigration and Naturalization Service) is simply an administrative agency of the Dutch government, i.e. the executive branch of the Dutch state with the task of faithfully carrying out laws, rules, and judgments as they apply to immigrants. They are not a court of law, not a legislator and do not have the final word on whether the right of duurzaam verblijf will be retained by Brits after Brexit. If anything, what they write on their website is the only safe answer for a civil servant with no inherent rule-making authority to give: “it depends”. (From my private conversations with senior IND officials, I can tell you, moreover, that they do not anticipate Brits who have duurzaam verblijf losing that right after Brexit. It is simply not their place to say that in public.) Certainly, it can somewhat depend on what the content is of the deal that is struck, if any. But as I have laid out in my analysis, I do not think that it will be very significant for Brits who have a right of permanent residence in any EU27 member state like the Netherlands: it will be more significant for EU26 nationals in Britain.

       

      • If you are a British citizen who has not yet lived in the Netherlands for five years, but established residence here before 29 March 2019:

      Your situation is, of course, the least certain. There is no express provision of EU legislation that could be said to account for the situation of what happens when an EU citizen, who has already made use of the freedom of movement and is currently making use of a right of residence in another member state, loses their EU citizenship.

      However, there is a legion amount of case law from the Court of Justice of the European Union concerning the protection of reasonable expectations that EU citizens may have when they set out to make use of their right of freedom of movement. One line of case law (which I am something of an expert on) started with the 1992 judgment Surinder Singh (or really, with a judgment that is even older than that, the 1979 judgment Knoors), and has continued through the 2018 judgment Coman. In this line of case law, the Court rules that if an EU citizen were not able to count on being able to rely on certain rights granted to them by EU law when they move to another member state, this could have a “deterrent effect” on their use of freedom of movement; the EU Treaties must be interpreted to prohibit any such barriers to freedom of movement. Thus, even when an EU citizen returns home to their own member state of nationalityafter making use of freedom of movement, they must continue to enjoy the same rights that EU law granted them (such as recognition of professional qualifications or a right of residence for their family members) while they were living in a host member state. In a sense, then, the Court has already ruled on what happens when someone “loses” EU citizenship, or at least loses the express protection of EU legislation that gives rights to EU citizens living in a host member state.

      On this account, I would argue that it is not whether or not you currently have EU citizenship or not that entitles you to protection; it is whether or not you had EU citizenship at the moment you established residence in the Netherlands, and that you could reasonably count on the rights attached to that citizenship (by Article 21(1) of the Treaty on the Functioning of the European Union) for the indefinite future. (I would further argue that it doesn’t even matter, on that account, if you established residence in the Netherlands after the Brexit referendum took place, or after Theresa May’s filing of the Article 50 notification—the fact remains that up until B-Day, you still are a fully-fledged EU citizen as far as EU law is concerned.) Under no circumstances can Brexit, and your loss of EU citizenship, lead to any sort of revisionist legal conclusion that you  never had EU citizenship and the rights attached to it (à la Oceania had always been at war with Eastasia”).

      There is an irresistible legal logic to my argument, because it also serves to strengthen the rights of EU citizenship for all of the nationals of EU27 countries. After all, if any of us EU27 nationals could be deterred from making use of our freedom of movement to move to another member state, merely because of the rise in influence of some fringe eurosceptic party in our own member state that would also like our member state to leave the EU, and we were afraid of potentially being expelled from our new home if that were to happen, then the entire ideal of freedom of movement in the EU as a reliable right would be irreversibly damaged.  For that matter, no employer in a host member state would ever want to hire an EU citizen coming from a eurosceptic member state; it would not be in their interest to potentially build up a long employment relationship with that citizen, only to have that citizen possibly be expelled someday.

      My argument makes political sense, too, if you still want to look at it from the perspective of the ongoing negotiations. If anything, the EU27’s hardline positions in its negotiations with the UK is all about preventing Brexit from becoming contagious: no concessions must be made that would give any other member state the idea that leaving the EU is a good idea. But allowing already settled British citizens to stay in the EU27, based on rights that they already had pre-Brexit, is anything but a concession. In fact, if settled Brits were to be expelled from EU27 member states, then it would be grist for the mill for eurosceptics in other member states, who would see that as evidence that you can’t count on the EU for anything, so you might as well leave.

       

      Ceterum censeo Brexitem esse delendam (Latin for “tl;dr”)

      We can still hope (I certainly do) that the UK, confronted with the chaos looming within its own shores, will reverse its decision to leave the European Union. Or that the UK will ultimately choose the “Norway model” of membership in the European Economic Area, or something similar, that would preserve freedom of movement of British citizens to the EEA and of EU/EEA citizens to the UK.  Or that some kind of deal will be struck. Do not give up hope as a British citizen, and be sure to use any electoral influence you have (if any) to push for a political solution.

      But if there is no deal, these are the take-home messages I would like to give Brits who have already settled in the Netherlands:

      1. The only thing that your loss of EU citizenship (or an analogous EEA status) means for sure is that you will lose your  future freedom of movement to another member state. So if (for instance) you are offered a job in Paris, Berlin, or Warsaw, you will be subject to the same type of immigration procedure (usually involving the employer proving the value of your presence to do that work) that a person from Argentina, Australia, or Angola will be subject to.
      2. If you have been here for twenty years, or if you have a close family relationship with someone who has a more or less unconditional right of residence in the Netherlands, then you do not have to worry about being expelled from the Netherlands. This is based not on EU law, but on the European Convention on Human Rights. I can tell you this with almost 100% certainty.
      3. If you have been here (and registered at a Dutch address) for over five years, and in your first five years you were always working 64 hours a month, or otherwise managing to keep your head above water without becoming completely dependent on social assistance, you have a right of permanent residence based on EU law. You can apply for a card that proves that you have that right. I am very, very certain (I’m not going to give you an arbitrary percentage of certainty, however) that you will not lose that right, in any case as long as you do not move away from the Netherlands.
      4. If you have moved here and established “genuine residence” in the Netherlands (you find work for at least 64 hours a month, are looking for work with a reasonable chance of finding it, you are studying, or you are otherwise self-supporting and can show that you have really moved the center of your interests to the Netherlands) anytime before the day Brexit actually happens, I think it is highly arguable that you will continue to enjoy the same rights you already have, as long as you do not move away from the Netherlands.

       

      Dr. Jeremy B. Bierbach, attorney at Franssen Advocaten

       

      ONCE MORE, THE DISCLAIMER: In this article, I am only describing what I would argue in court as a qualified, experienced lawyer. This article is not meant to be a resource for anyone else, least of all a non-lawyer, to argue their own case, and I will not accept any liability for anything that I write here that someone uses on their own. Every individual’s case is unique, and although I am saying here what the applicable legal norms are for certain abstractly defined categories of persons, there may always be individual circumstances that negate or supersede those norms. This is also a heavily digested legal analysis, aimed at non-lawyers, in which I am largely not providing the sources of published case law and legislation that underpin my analysis.