Brexit for Brits in the Netherlands: Take action early!

Mynta Law is a dynamic and driven law office located in The Hague. Providing quality legal services for both corporate and private clients, the firm has a special focus on migration law.

Immigration lawyer Arend van Rosmalen specialises in EU citizenship and recently attended a Brexit symposium hosted by the Dutch Association for European Law.

He explains the current Brexit situation, and lists available remedies for individuals and families.

Brexit is a very real reality, and any soothing reassurance that British citizens in the Netherlands need not be wary about their continued stay here, are based mainly on sentiment.

Miller judgement demonstrates uncertain future

If anything, Brexit is above all uncertain. The UK High Court’s recent Miller judgment (ruling that MPs must vote on Britain leaving the EU), and the government’s subsequent appeal, starkly show there is no consensus even on the rules of the Brexit game. The process is so uncharted that the outcome cannot possibly be predicted.

Therefore, British residents in the Netherlands should be made to understand that a few eggs will surely be cracked to make Brexit happen.

Article 50 Notice is irrevocable, says UK High Court

The judgment of Miller has been presented in the media as a rearguard action that would ensure the terms of Brexit could be "softened".

According to the judgment, the British government does not have the constitutional power to autonomously start the article 50 withdrawal process from the EU, i.e. without explicit Parliamentary consent.

It is easily assumed that Parliament, being more Remain-leaning, could negotiate a few promises from the Government even before the negotiations get underway.

But the judgment comes at a great price that many overlook. The conclusion that Parliament must consent even to the triggering of the article 50 negotiations, instead of only having a veto as to the result of Brexit negotiations with the EU, is based on a far-reaching assumption, which the judgment presents as "common ground".

This assumption is that an article 50 notice can never be revoked once given and that, moreover, such a notice cannot be given under the condition of Parliament eventually approving a negotiated exit arrangement.

In other words: the High Court finds that the mere triggering of article 50 will immediately put the UK on a one-way street from which it cannot possibly turn back.

Is a "hard Brexit" a real possibility?

The consequences of this point are plenty, and few of them are aiding the Remainers’ agenda.

If the High Court correctly assumes that the article 50 process is not reversible at all, then after the lapse of twenty-four months - which is the timeframe provided by article 50 of the EU Treaty - Britain will have to either accept the deal on the table, or suffer the consequences of a "hard Brexit", which is sometimes described in terms of a "cliff".

When Parliament would be presented with that choice, whatever promises the Government may have given it beforehand will have little significance in the end. The High Court assumption also opens the possibility of a "hard Brexit" not being the result of diplomacy, but rather of a diplomatic failure.

What if, after two years, there simply is no deal on the table yet? Germany, France and the Netherlands will see parliamentary or presidential elections in 2017. Italy may see early elections next year as well.

The dangers of delay

The EU has shown time and again that it may be good for many things, but it is certainly not very good at addressing problems ahead of time.

Then, even if there were to be a consensus, what would happen if one or two member states have their own parliamentary problems ratifying a deal brokered in Brussels? What if a Dutch journalist gets it into his head to stage a referendum on this thing?

Consequences of a delayed Brexit

In other words: can the Brexit process tolerate delay? The answer to that, again, is provided by article 50 of the EU Treaty. The two-year deadline cannot be postponed unless all member states unanimously agree otherwise.

And, assuming with the High Court that an exit notice can never be taken back once given, that answer is really final.

With no consensus on a Brexit deal, and no unanimous consensus on allowing delay, the time bomb that is article 50 of the EU Treaty will detonate by itself, automatically and irreversibly resetting Britain to a default position of being no member state of the EU, regardless of individual consequences.

Are British expat concerns justified?

The above possibility makes very clear that British residents in the Netherlands are right to worry about their futures here.

Officials and spokespeople of the government may soothe Britons’ justified concerns, saying that, surely, there will be some sort of arrangement for them. But don't assume that these statements hold the power to back up such half-promises.

Among all the turmoil, it is absurd to assume for even a moment that the key role in deciding on arrangements for British citizens living overseas will be played by any local authority in the Netherlands, or the head of the IND, or even the Dutch prime minister himself.

It will be diplomacy at an EU level that will decide this thing, the diplomatic process so far is impossible to predict, and the rights of British citizens living overseas are among the currency on the table.

So yes, concerns are justified, and seeking remedies at an individual level, even at this early stage, is a wise thing to do.

Changing from an EU-derived residence right to an "ordinary" residence permit

Dutch immigration rules do hold options for many British citizens in the Netherlands who wish to "untie" their right of stay from the fact that they are - still - EU citizens.

But because immigration rules for non-EU citizens are obviously stricter than those currently applicable to British citizens, it is certainly good, and maybe even necessary, to seek advice well in advance.

The process of changing from an EU-derived right of stay to a residence right that is untied from the EU citizenship status, may take time.

EU-derived right of stay

The residence rights that British citizens currently enjoy in the Netherlands, are all derived from their EU citizenship status.

Up until five years, this right of residence is conditional. EU citizens need to either work in paid employment or as a freelancer, or otherwise have sufficient resources to avoid becoming a burden on the social welfare.

After five years of meeting these conditions, EU citizens obtain a right of permanent residence, which is said to be unconditional.

But is it really? When a Dutch national loses his Dutch citizenship, he or she certainly cannot stay in the Netherlands without a residence permit. The same holds for a German citizen living in the Netherlands whose German citizenship is taken away.

In short: when the underlying status falls away, any rights built on that underlying status also come to an end.

Options for British expats in the Netherlands

Following are some steps that British citizens in the Netherlands can explore to ensure their right to stay:

› Apply for a "general" permanent residence permit

There is nothing in the Dutch immigration legislation that bars a British citizen from already applying for the type of permanent residence permit that normally only non-EU-citizens apply for.

This type of residence permit would allow for continued stay even after a "hard Brexit", as it is not granted by virtue of the EU citizenship status, and is available to any non-Dutch resident who meets all the conditions to apply.

These conditions, by coincidence, also include a residence requirement of five years. Unlike the EU-derived right of permanent residence, however, non-EU-citizens must additionally prove they have sufficient income at the time they make their application.

And there is the requirement to learn Dutch, which may be a burden for some, but not for others.

› Dutch citizenship

Applying for Dutch citizenship, finally, is more far-reaching. Dutch nationality legislation requires applicants for Dutch citizenship to renounce their original nationality. With Brexit underway, this may impact on entitlement to return permanently to the UK.

The obvious advantage of applying for Dutch citizenship, on the other hand, is that Dutch nationality will continue to grant the EU citizenship status, with all the rights and benefits that it brings.

In spite of recent developments, it is still reassuring for many people to be citizens of the European Union.
 

Wondering how Brexit may affect your personal situation? For individual advice please contact Arend van Rosmalen at Mynta Law using the contact form below, or:
› call +31 (0)70 205 11 63
› email vanrosmalen@mynta.nl.