Brexit · Moving To France

Responding To Project Fear

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Project Fear will now be used throughout the referendum campaign; keep these points in mind to ease your mind if the scaremongering gets too much in the coming months.

  • The Vienna Convention covers the majority of expats living throughout Europe already and gives them acquired rights.

  • Acquired rights of people running businesses in France and other countries are covered under the Treaty of the Functioning of the European Union.

  • This well established principle of acquired rights would probably be upheld in European Courts for retirees etc as well.

  • Failing this, it will be a long drawn out process!

I spoke in my last post about how my mother, being informed by English news in my folks home in Normandy, had been worried by the claims made. The one that annoyed me most of all was the suggestion that, aside from the fact that they would be immediately kicked out of their country of residence and therefore their own property, that when they returned to the UK they wouldn’t get housing benefit or rehoused in a council property either which, having lost their home in France, would effectively make them homeless. With dark humour she said that, should the referendum result in a decision to leave, she may be coming to live in our garage.

I’m really angry that people who wish the UK to remain in the union are using these kind of fear tactics – have we not learnt from the Scottish campaign? If it’s a vote for in using this kind of argument it won’t be a happy marriage but a shotgun wedding with all the implications!

As the hubby and I have been wanting to move to France for some time I’ve been researching what the implications of Brexit are and have pulled together some possible outcomes from before project fear got under way. If you’re a British expat who’s worried about what Brexit means for you please read them, and keep them in mind whilst project fear really gets under way. However do take into account that I’m not a lawyer (so don’t sue me!).

Will British Expats Be Expelled From Their Acquired Homeland Following A Brexit?

In June of last year The Telegraph ran an article challenging this. At that time Former Attorney General Dominic Grieve had said

“EU exit would make 2 million Britons abroad illegal immigrants overnight.”

The article stated that The Vienna Convention on the Law of Treaties 1969 contains articles that are based on ‘acquired rights’, which individuals build up over time and hold despite any changes in future treaties enacted by their nation. I came across this article through a link on an expats message board dated from last year following the general election and the reality of a referendum. The poster included it as evidence that there was nothing to worry about.

Noting that the article was sponsored my suspicious nature kicked in, so I looked up the convention. The Vienna Convention on the Law of Treaties concerns the international law on treaties between states. It came into force on 27 January 1980 and has been ratified by 114 states; below is an image of those countries that have signed up to it as of 2014. Those in green have ratified the treaty, those in yellow have signed up to it and those in red have done neither.

This means my brother, and others like him, who have bought properties in Spain would have their rights protected as they have done so before Brexit. However if you’re in France right now you’re probably seeing a big block of red – what does this mean?

The bad news is that the scope of the Convention is limited and applies only to treaties concluded between states, and the EU itself is not a state. With regards to the Vienna convention it appears that France may not have to play ball.

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What About Acquired Rights In France?

The report further examines the issue of British citizens and businesses in the EU – and EU citizens and businesses in the UK – and the rights they currently receive. It asks; would they disappear over night?

Vested rights, such as the free movement of workers and freedom of establishment would very likely be covered by Articles 26 (internal market), 49 to 55 (establishment) and 56 to 62 (services) of the Treaty on the Functioning of the European Union (TFEU).

The articles refer to self-employed persons (perhaps gite owners), professionals or legal persons who are legally operating in one Member State may and carry on an economic activity in a stable and continuous way in another Member State, or offer and provide their services in other Member States on a temporary basis while remaining in their country of origin. It can be viewed that EU Member States have irreversibly vested the nationals of the Member States with a “legal heritage” of rights that can likely be enforced after withdrawal.

As France is a member of the EU these rights would therefore exist for those operating a business there.

Additionally Lord McNair confirms that private rights and statuses (not just those operating a business) created under a treaty that have already been executed and had their effect before withdrawal “have acquired an existence independent of it; the termination cannot touch them” and, in these circumstances, would be ‘protected’ by the “well-recognised principle of respect for acquired [vested] rights”. The fact that these are well recognised means that even if France hasn’t signed up to The Vienna Convention itself they would be recognised in a European Court where it is in the other member states; particularly in conjunction with these articles.

Could France And Simmilarly Placed Nations Be Used To Coerce Business As Usual In The Event Of An Brexit?

However, while the EU as a whole tends not to impose visa requirements on wealthy countries, it does expect such countries (such as the USA and Canada) in return to exempt all EU citizens from a visa. So if the UK wished to impose visas on Poles and Bulgarians, for example,  it would face pressure from the EU to waive such requirements – or face the imposition of a visa requirement for UK citizens. Further pressure could be applied by those countries, like France who have not ratified The Vienna Convention, with threats of the withdrawal of rights in defence of other member states.

This and other reasons may mean that any Brexit may not result in a dramatically different change to the status quo!

So Should You Pack Your Bags?

If all this fails it is important to note that immediate expulsion is not on the cards! Reading the House of Commons Research Paper on the subject it’s clear that a state wishing to withdraw must notify the European Council (EU Heads of State and Government), which will consider the matter and set out negotiating guidelines; these are based on the European Council Guidelines. It has been acknowledge that a long negotiation period under Article 50 TEU would be necessary because “withdrawal from the Union would involve the unravelling of a highly complex skein of budgetary, legal, political, financial, commercial and personal relationships, liabilities and obligations”.

There is a maximum two-year negotiating period which would aim to conclude both the withdrawal agreement and any consequent amendments to the EU Treaties. During the negotiation, the withdrawing Member State (i.e. us) would continue to participate in other EU business as normal, but it would not participate in Council or European Council discussions or decisions on its own withdrawal.

It is highly likely that withdrawal would take the full two years as, the paper gives as examples, we couldn’t withdraw from the Common Agricultural Policy overnight without causing enormous disruption for farmers. Additionally transitional arrangements for an alternative regime to be put in place would have to form part of the withdrawal agreement. Similar problems would have to be dealt with in relation to projects, joint ventures etc, for example in the field of research, which are being funded by the EU as part of a long-term programme.

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