Brexit: What should expats do now?

Tue 08 August 2017, Philippe Ropenga

The Secretary of State for the Home Department has presented a policy paper regarding Brexit. People who owe property in France as well as French citizens who live in the UK wonder what to do now that Brexit is on the way. The following general guidelines will allow them to understand legal issues that are at stake. Every case is different, and this post is not written to replace professional legal advice. I know that people are anxious about potential legal consequences that Brexit may have for them. I also understand that they may wish to start filling paperwork to secure their rights after Brexit. It seems to me that the most practical issues will have the most significant legal consequences. I therefore would not like you to get sidetracked from these issues by administrative intricacies.

A presentation of the administrative framework should help you to grasp the basic rules that underpin the administrative Brexit ¹. You should be able to understand Brexit in practice ² and thus to dedicate the time left before the UK leaves the EU to assess your needs in order to make the most out of the legal and administrative content of the exit deal that is currently being negotiated by the UK and the EU.

1 Framework

1.1 The principles

Every non-UK citizen will have to prove that he has a permission to stay in the UK. Non-UK citizens will have to apply for a permission to stay in the UK. It will not be automatically given to EU citizens. Since the UK will not be bound by EU law after Brexit, any document issued in accordance with EU law to any EU citizen will be replaced by the residence document². It for example will be required by public institutions or employers, at the end of a grace period that will start on the day when the UK effectively leaves the EU.

The specified date also is important. It refers to a date to be set later that will be used as a reference.

The policy paper states that "it will not be set to any earlier date than the 29 March 2017³", i. e. the date of the official start of the exit process. It cannot be set to a later date than the date on which Brexit comes into effect⁴.

The policy paper introduces the settled status designed to preserve the rights of EU citizens after Brexit. The settled status allows EU citizens to reside and work in the UK as well as to have access to social benefits and public services.

To claim the settled status, one has:

— to have been a permanent resident in the UK for a certain period of time before the specified date, AND, — to remain a permanent resident in the UK, AND, — not to be considered objectionable by UK authorities (conduct, criminal record, threat to the UK)⁵.

Applicants probably will be required to prove that they have been permanent residents for five years before the specified date to be granted the settled status⁶. If this requirement is not met, EU citizens will still be able to apply for the settled status but they will have to follow another route.

Settled status could be lost or not granted in case of absence from the UK. The absence that could lead to a loss of settled status has to be continuous and last more than two years⁷.

Let's now see how these principles structure the Brexit process.

1.2 The process

When the UK effectively leaves the EU, a grace period starts. It probably will last two years. During this grace period, EU citizens will be able to request the settled status, a temporary resident permit, or British citizenship⁸. After the end of the grace period, any EU citizens will need a temporary residence permit or the settled status to stay in the UK.

Any EU citizen, notwithstanding his date of arrival in the UK, will be able to request the settled status. Nevertheless, the outcome of the process depends in practice on the date of arrival in the UK.

2. Practice

2.1 Determining your situation

It is useful to distinguish three main situations:

Situation 1: You have been living in the UK for more than a certain time, probably five years, before the specified date without absence, you will be able to request the settled status at the beginning of the grace period that will start as soon as the UK will have left the EU. You are likely to be granted the settled status. You would have the same rights as before Brexit.

Situation 2: You have been living in the UK before the specified date but for less than the period of time required to get the settled status. Two different situations have to be distinguished there.

— 2 a) By the end of the grace period, you will have lived the required amount of time in the UK to request the settled status. As an example, you have lived for four years and a half in the UK before the specified date. The UK leaves the EU; the grace period starts. You can live in the UK as before and request the settled status six months later, i. e., as soon as you will have lived for five years in the UK. You are likely to be granted the settled status.

— 2 b) By the end of the grace period, you will not have lived during the required amount of time in the UK to request the settled status. For instance, you have been living in the UK for a year since the specified date. The UK leaves the EU; the grace period starts. You will be living in the UK for three years when it will end. This is not enough to be granted the settled status. You will have to ask for a temporary residence permit. More details regarding the temporary residence scheme will be given by the UK as the Brexit process goes further. Your situation is less clear than the previous one. If you stay legally in the UK for five years, you should be able to request the settled status.

Situation 3: You entered the UK after the specified date. Your situation is even less clear. The outcome of any request for permission to stay in the UK will depend on the law that will be in force when your request will be submitted.

Now that you know what Brexit administrative intricacies will look like, you should be able to dedicate more time and thought to practical matters. This post only is here to provide you with general guidelines that should help you start assessing your needs.

2.2 Assessing your needs

The way you should tackle issues regarding Brexit mainly depends on where you live and where your property is located. Your place of residence should in practice largely influence the way you manage your finance and your property. I know that some readers may be anxious since they did not know how Brexit will affect their job. They should know that there is one great think about international law, especially in uncertain times: it always gives you a fairly predictable answer. Why? It relies on abstract criteria that trigger the application of a given legal rule to a given situation. If that legal rule changes because of Brexit, the lawyer can still apply the relevant criteria to trigger the application of the new rule and apply it to the situation. Many European jurisdictions share common abstract criteria that are determined by several European regulations that still will apply. The UK now has two options, i. e., to implement EU law in domestic laws, that is likely to happen, or not to implement it. If it does implement it, the law will remain more or less the same. If it does not implement existing European regulation, lawyers will apply the abstract criteria they are familiar with.

Furthermore, the UK is not always bound by every EU regulation, such as the succession regulation. This situation does not cause any major difficulty. A lawyer who has been trained in private international law knows that if he arranges his client's situation to fit an abstract criterion, he will be able to rely on this abstract criterion to trigger the application of a rule that leads to the most convenient result for his client. It is fairly easy to circumvent a legal difficulty such as forced heirship⁹. It however is less easy to address obvious practical issues that have not been considered beforehand. In an international context, these thorny practical issues tend to become a nightmare. This is why, notwithstanding what the law will be, you should think about your investments and your property.

Investments: Do you live in France or in the UK? Are you sure that your investments fit your actual situation? What are your projects?

Property: Do you live aboard and have property in France? How is it managed on a day-to-day basis? Are you happy with the way it is managed? Large testamentary freedom in an international context is now largely recognised in French law while English law has been limiting it over the past decades¹⁰. How do you want your estate to be divided after you are gone? How do you value your property aboard?

As you can see, legal or financial issues are closely related to subjective considerations. A practitioner cannot deal with technical issues without understanding you. He cannot answer to some questions for you. This is why you have to get involved while addressing the issues that Brexit throws on your way.

In brief, anything regarding Brexit is subject to change, but this general analysis of the policy paper regarding Brexit shows that administrative difficulties will not be insuperable. Tackling the effect that Brexit has on individual situations certainly demands thought. Summer is the perfect season to think about Brexit!

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