Calling all Expats! voting rights review

The restriction on voting in UK elections for any UK citizen who has not lived in the country for more than 15 years is to be scrapped, according to Chris Skidmore, Minister for the Constitution.

This was an issue which cropped up a number of times during the referendum campaign – and by no means all of the frustrated expats unable to vote were remain supporters. The Campaign for an Independent Britain received a number of e-mails from expats who were very upset to be denied the chance to vote to take the UK out of the EU.

The statement mentioned elections but not referendums. It also talked of people who “have lived in the UK”. In other words, it does not appear to cover British citizens who have never lived here.

The comments to articles about this proposed reform therefore unsurprisingly indicate that not everyone is thrilled by this planned change, but it does go some way towards addressing a frustration felt by  a number of people who contacted our organisation durng the referendum period.

Postal votes for Expats – make sure you register!

If you live overseas, are eligible to vote in the referendum and want to do so (hopefully to leave the EU, please!) do make sure you apply for your postal vote in time.

UK citizens in Spain, one of the more popular destinations for expats, must register by next Monday (16th) as this article points out.  Residents of other countries need to check what the deadline is where they live. it is likely to be pretty soon.

Photo by Karen_O’D

Not all expats want to stay in

Cameron and his friends are still playing the fear game for all they are worth. The Expat comunity has been particularly heavily targeted. Last year, we highlighted an appalling piece of misinformation originating from the former Attorney General, Dominc Grieve, stating that withdrawal would result in our expats becoming stateless – illegal immigrants in other words.

An article in today’s Daily Telegraph suggests that  the fear tactics  are having an effect. Apparently, “experts {are} predicting an exodus from the continent if voters opt to leave the bloc. Access to healthcare, the value of pensions and the right to study overseas are among the fears British citizens abroad harbour.”

As we have pointed out, their fears are without foundation. Rejoining EFTA, a popular move with voters in this country, would ensure that life carries on as normal for the expats.

It clearly isn’t proving easy to reach expats with these words of reassurance and we strongly recommend all our readers to spread the word to any of our fellow-countrymen and women in their acquaintance who live abroad.

However, it isn’t true that all of them will be voting to stay, purely out of fear. We were recently forwarded an article which Roger Helmer MEP had spotted.   It quotes Wendy Simpson, a former executive with the CBI who  lives abroad and supports leaving. She may have retired but has not forgotten her days as a businesswoman and her frustrations that, in her words “so much that comes out of Brussels is unnecessary and hampers business”.

The article quoted from other expats on both sides of the debate. It is clear that the Spanish government is not playing fair. One  expat was asked “why don’t you go home?” and the article claims that Madrid is saying a new deal would have to be negotiated for expats to access healthcare and other services.  Well, this is true to a point, but once again, rejoining EFTA knocks those concerns on the head – it deals with those negotiations at a stroke.  Just as there won’t be millions of Poles fleeing the UK on June 24th, so there will be no mass return of expats to the UK. End of story.

Photo by sky_hlv

Expat rights – ignore the scare stories

This helpful article, which appeared in The Brexit Door blog, is a most helpful debunking of a myth which has been doing the rounds recently.

One of the constant themes that I have heard over the last few days, both in discussions and on social media, is a fear over the treatment of ex pat Britons who are now living in  the wider European Union if we were to leave it.

This has been fuelled by the media, and used as part of the ‘Remain’ campaign. I hadn’t taken it too seriously until a friend of mine in France posted one of the many UK Labour “mythbusters” links on my facebook time line, which also attempted to sow fear into the minds of Ex Pats and more recent immigrants to the UK. Clearly, she has been unnecessarily concerned by these attempts to misrepresent the facts, which I find both underhand and particularly unpleasant. (This has always been part of the tactical advantage for Remain of going to the polls early and shortening the campaign – fear takes hold quickly but longer to assuage with facts).

The law surrounding the rights of Expats is clear, and they have nothing to worry about (that they didn’t have already anyway).

The Doctrine of Acquired Rights.

This has long been a guiding principle of international law, especially in succession issues, where the sovereignty of a nation has changed. An early 20th Century example of how acquired rights are accrued in international law is that of the German residents and descendants living in Poland after the end of the Great War. Moves to treat them as ‘aliens’ with reduced rights were spurned by the Permanent Court of International Justice. They had been resident for many years (and some had been born there), and although the court at that time could not bind Poland to the decision ( the role of the court in this case of 1923 was only advisory), the doctrine upheld is clear. So this is not a recent legal development.

This is backed up by the more recent (1969) Vienna Convention on the Law of Treaties which in article 70.1.b states that termination of a treaty :

Does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination

This would apply to expats just as much as it would to EU citizens living in the UK. The current standing would apply, the obligations of the state would be unchanged. This should extend to anti discrimination laws also, which would be applied in the nation states themselves at a domestic level, and ultimately in the European Courts for the members of the European Union if not upheld correctly. The right to remove a case to the EU would remain unchanged in this aspect (as we see non EU citizens having access to the EU courts in disputes with the UK state based on residency or locus standi).

What does this mean for Expats and and EU Citizens on a practical level?

Quite simply, that whatever the outcome, they have nothing to fear. There is no political will here in the UK to do anything prejudicial towards the millions of EU migrants living and working in the UK. It would fall foul of our own anti discrimination laws, before we even got to thinking about how it would be treated in international law. It is also not in the nature of the UK courts, administration or its people to behave badly to foreigners or immigrants, despite some of the wilder accusations or minority opinions held in pockets by extreme nationalists. This is no different from any other country in Western Europe, we are an open and welcoming nation for all those who come here (observation of our laws and customs being our sole request to the international settler).

For the Expat Briton in the EU, the situation should be exactly the same. The law continues to protect the rights that have accrued under our membership of the EU even after we have left the political structures. There should be no change to the relationship that Expats have with their countries of residence, municipal authorities or the EU institutions as a whole.

One concern raised personally with me was that the French have never signed the Vienna Convention, would that distinctly affect Expats in France? The answer to this is a simple. No, because the Vienna Convention was only in this respect codifying what has always been clear in French Legal Doctrine, and was clear before the Convention was drafted.

I came across this rather old text, in which Law professor Pierre A Lalive, (the President of the Geneva Law Society), explains the doctrine and its history. He makes specific reference to the importance of the Doctrine in French legal history (and to Pillet’s theory, p157 if you care to read it). The French have no legal history of setting aside the doctrine of acquired rights. And also, the EU backstops this tradition as it requires France to practice correct anti discrimination law as laid down by the Treaties.

The Final Outcome

Let us be extremely frank here, the Government does not want to leave the EU. The civil service which advises it and will form the backbone of the negotiating strategy team will always look for the least disruptive method by which to leave the EU if the people force their hand. They do not want to leave the EU either, because their function is now so intertwined with it that it has become hard for all practical purposes to determine where Whitehall ends and Brussels begins.

This leaves (as Rafael Behr points out in the Guardian today) the civil service looking for the closest answer to EU membership while still upholding the strict will of the people. And of course, the question on the ballot paper is very straightforward – about ‘Leaving the EU’. The post EU settlement is not up for discussion as part of the Referendum question, we have discussed it so as to reassure those who have fears about the effect of Brexit that really there is little to worry about.

So this leaves the government open to many options, but it is clear as Behr points out, that it will seek the closest relationship with the EU that it possibly can without actually breaking the directly expressed will of the British people. This will be to retain our membership of the EEA (so therefore keeping the four freedoms in tact) and looking to re enter our relationship with the EFTA. This would give us significant gains in political freedom, especially in Justice, Home affairs, International Affairs, International Trade, Fishing and Agriculture, Environmental regulation, education, transport, social and welfare rules and such employment areas such as health and safety.

Even though this would not change the four freedoms it would allow us access to the ‘Unilateral Emergency Brake’ of EEA 112/113 (which we have seen Iceland use). Many other things would remain unchanged. Labour Law would not significantly change as we have obligations under the ILO (International Labour Organisation). Trade rules and product conformity assessments would not change, this is governed by the EEA rules (EU laws which have EEA application run to about 21% of the total of EU law and are largely market regulation and competition law). Most of those rules are generated by international bodies such as the WTO, UNECE and Codex Alimentarius. All of these bodies would now have a British direct influence, currently pooled by the EU and operated on our behalf.

So change would be slow and incremental, there would be no threat to businesses, trade, or to individuals working or in business in the EU or here where they are outside their country of nationality. Conformity would remain, the most major change for businesses would be that they would no longer be in the Customs Union, but of course that will free the UK government to reduce tariff  and non tariff barriers further to the wider world (and that’s something the British have proven to  be pretty good at, international relations).

You have absolutely nothing to worry about.

“A lie can travel half way around the world while the truth is putting it’s shoes on”.

(Mark Twain (Wit and Wisdom of Mark Twain: A Book of Quotations)).

Expat worries are mistaken

The pro-independence movement is excited by the prospect of withdrawal. However, to secure that all-important “out” vote, it will be necessary to win over a good many people for whom the terms of the debate so far has made them anything but excited about the thought of “Brexit”. One such group is the expatriate community. Some of our compatriots living abroad are very concerned indeed.

The root of the problem is the strong language that has been used in the debate about immigration. For a number of voters, a desire to limit the number of people coming to the UK is the most important reason they would give for supporting withdrawal from the EU. Some of these people may have genuine concerns, such as suffering an increase in waiting times at their local GP’s surgery due to large numbers of migrants, or finding themselves undercut by Eastern European tradesmen willing to work for a pittance. Others may be xenophobes in the worst sense. For all the variety of reasons different people may give for their concerns, the net result is that there is considerable political capital to be made in talking tough on immigration, whether from the EU or elsewhere.

However, this cuts both ways. A substantial number of UK citizens live abroad – some 8% of our population, in fact. Most countries boasting large numbers of expatriate Brits are, unsurprisingly, Anglophone nations such as Australia, Canada, New Zealand and the USA, but the prospect of a retirement in the sunnier climate of the Mediterranean has attracted large numbers of our fellow-countrymen too. Estimates vary, but it is possible that as many as 700,000 UK citizens are resident in Spain and 200-400,000 in France. Also growing in popularity is Bulgaria, which boasts a pleasant climate, incredibly cheap housing and, at least in the villages, a strong community spirit. At least 50,000 of our countrymen have chosen to relocate to this country whose own citizens are not exactly popular when they come over here. It’s not just retired people who have moved abroad. Berlin, hardly renowned for sea, sand and sunshine, was home to over 14,000 Brits at the end of 2012 – many of them young people attracted by a city that has developed a trendy image in recent years.

If freedom of movement of people were curtailed when we leave the EU, what would become of these people? As has already been pointed out on this website, misinformation stating that they would become “illegal immigrants” has been put about by no less an individual than Dominic Grieve, the former Attorney General. As we pointed out, people who have acquired rights of residence will still have those rights whatever form of exit might ensue. They simply can’t be booted out. However, our blog isn’t reaching the areas it should, for a recent report suggests that a number of expats are so concerned about withdrawal thay they looking at acquiring dual citizenship to ensure they won’t end up stateless. Likewise, as the Guardian reported recently a number of EU citizens resident in the UK are considering similar action.

It would be a tragedy for the “out” campaign if immigration was to become the most dominant issue. It would mean that we would lose, point blank, and the blame lying with wishful thinking. Given that the most seamless exit route from the EU is via the EEA and EFTA, whatever some people might desire, we would still initially remain subject to all four freedoms of the Single Market, including free movement of people, so compulsory repatriation of EU residents just isn’t going to happen. Within the EEA, we need not allow the dependents of migrant workers from the EU to join them and if we feel we are struggling to cope with the number of EU citizens arriving here, there is the possibility of applying a temporary brake, as Liechtenstein has done. That is all. Furthermore, any long-term arrangement replacing the EEA agreement would inevitably want to ensure the preservation of vested rights – a fundamental principle of international law – allowing long-term residents to remain where they are. It is, of course, possible that independence may well result in substantial numbers of people voluntarily returning to their own country. Some expats, disillusioned with recent politics in the UK, may feel that independence offers a chance to put the country right and come home. Some EU citizens currently resident in the UK may decide that they do not wish to reside outside of the EU, even if they would not be treated any differently in an independent UK. However, we cannot be sure what will happen. Others clearly like it here and will want to stay, come what may. It is therefore better for them and for our own expatriate community if ALL supporters of withdrawal keep the focus on what really counts – the re-establishment of UK sovereignty – rather than allowing free movement of people to dominate the forthcoming campaign. Those who are uncomfortable with the current level of immigration will vote to leave regardless. Their votes are already in the bag. We need to focus on winning the votes of people who have other concerns and alienating our expat community for no sensible reason will do our cause no good.

For further comment on the Guardian Article, we recommend the latest article in the EU Referendum blog.

Spreading Alarm and Despondency amongst British Expats

Whilst we know that politicians are not on oath to tell the truth, the whole truth and nothing but the truth, they are not entitled to misinform people either recklessly or deliberately. This is particularly true for those who speak from a position of apparent experience or authority which lends weight to their views.

You would expect a lawyer and former Crown Law Officer to be aware of this responsibility. Yet Dominic Grieve, the former Attorney General and a practising barrister did not live up to this standard.

In the run-up to the election, the Guardian reported him saying that 2 million UK citizens working in the EU would become illegal immigrants overnight if Britain were to leave the EU. This is a massive untruth. People who have acquired rights of residence will still have those rights even if the EU treaties cease.

They are known as “acquired rights”, “executed rights” or “vested rights”. They are so firmly established that they have acquired the status of “customary law” which means that they stand as a fundamental principle of international law, not needing a specific treaty to confirm them. There is even a parliamentary briefing note about it, so Mr. Grieve has no excuse.

On 26 May I was surprised to see a report on RT (Russia Today) giving credence to this scare in a report about worried British expatriates living in France. Now RT is generally a far more sceptical reporter of EU affairs than the BBC but they seemed to have swallowed the British government story hook, line and sinker. There were some very distressed people with established businesses, fearful that they would be forced to leave and preparing to put their homes on the market.

We can expect much more of this style of panic mongering from the British government as the date for the British EU referendum approaches and it was surprising that RT had unwittingly stoked up unnecessary distress for these people.

There is a perfectly feasible way for the UK to leave the political structure of the EU and retain its trading and other relationships without any significant disruption. You can read it here and can listen to a half hour introduction it here

Photo by James O’Gorman