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Austrian case offers British expats hope after Brexit

A legal case concerning an Austrian who gained then lost German citizenship might offer hope to British expats concerned about residency rights following the UK's decision to leave the European Union.

Published: 28 July 2016 10:05 CEST

Austrian case offers British expats hope after Brexit

Jose Manuel Mota/Creative Commons

The following article by lecturer in Law at the Open University Anne Wesemann first appeared on The Conversation and is being republished in full here.

Britain’s decision to leave the EU has left many of its citizens wondering what their future holds. The situation is particularly worrying for the thousands of British citizens living abroad. Years of freedom of movement have coloured the European map with emigrants seeking a new life in other countries.

Some are retired, some are studying and some are working. Up until now, they have been entitled to the same rights as any other EU citizen. That includes access to healthcare in any EU member state and access to certain child benefits. They also have the right to support when seeking work or for housing.

But what happens to these hundreds of thousands of people when their home country is no longer part of the EU deal? Will they all have to come home? They are facing just as much uncertainty about their future as EU citizens in the UK.

They are at risk of losing all their rights as EU citizens once Britain leaves the European Union. In the worst case scenario, they would have to leave the country, as they will lose the right to move and reside freely.

That is, of course, an extreme case, but more immediate concerns will be whether they will be denied access to public healthcare, whether students will have to start paying higher fees, and whether families could lose access to child benefits. Those working could be asked to apply a work permit of some form.

Article 20 of the Treaty on the Functioning of the European Union, which is one of the two main treaties establishing the European Union, states that every person holding the nationality of a member state shall be a citizen of the European Union. Taking this provision by its word means that as soon as Britain has successfully withdrawn its membership, Brits lose their European Union citizenship.

It will be down to the remaining 27 member states – not Britain – to decide how they interpret this rule. They will determine the status of Brits abroad and the rights that come with that status.

They might offer special status for a period of time, allowing UK citizens to stay where they are. They might, however, tie that to certain requirements such as language skills or the role the people in question play in their host society. Brits can always aim to naturalise into their host country, but that of course is a significant commitment.

A special case

They might be glad to hear, though, that the Court of Justice of the European Union (CJEU) has dealt with a similar situation and passed a judgement that might help them make their case.

This is the case of Janko Rottmann, a former Austrian citizen who ran into some trouble when trying to become German.

Rottmann lost his Austrian nationality when he became a German citizen – as under Austrian law, nationality is automatically revoked if a person is naturalised elsewhere. But it turned out that he had lied about his criminal convictions when applying for German citizenship. When the German authorities found out, they withdrew his citizenship, leaving Rottmann stateless.

It is entirely up to the national government of each European Union member state to decide how individuals gain and lose nationality. The CJEU did not question that. But connected to the nationality of a member state is the status of European Union citizenship. It had to look into whether Rottmann could be stripped of his European citizenship, too.

The court did eventually rule against Rottmann, but his case is still useful for Brits living abroad after Brexit. The CJEU did not allow Rottmann to keep his citizenship specifically because he had deceived the authorities. His criminal behaviour was what stood in his way.

The court is actually always keen to emphasise how European Union citizenship is fundamental and it did so in Rottmann’s case. It was only his criminal behaviour in the naturalisation process that allowed the member states to effectively withdraw his European Union citizenship status.

This is where the situation of British people living abroad differs significantly. They will not have had their nationality withdrawn due to criminal behaviour. They would be finding themselves in a unique position, where the state whose nationality they hold withdraws from the European Union and consequently strips its citizens of their European Union citizenship, including all of the rights attached to it.

It is uncharted territory, but what we do know, thanks to Rottmann’s case, is that the European court requires member states to justify any infringement of European Union citizenship rights. The court is clear that the consequences of such a decision for the person concerned need to be taken into account. This is where those who have been living abroad in Europe for years, who have retired there, who have raised their families there, should feel more at ease. The court will not easily allow their European Union citizenship rights to be withdrawn.

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'I feel exiled': How Brits in Europe are locked abroad with foreign partners

Europe is home to hundreds of thousands of British nationals, many of whom have foreign partners and children. But if they want to move to the UK to live and work it will soon become more difficult.

When it comes to getting a partner visa, the UK has some of the strictest rules in Europe. In addition to hefty fees and a healthcare surcharge, the Home Office requires British citizens and long-term residents who bring their foreign partner to the UK to have a minimum income showing they can support them without relying on the social security system.

The minimum income up until now was set at £18,600 (€21,700), or £22,400 (€26,100) if the couple had one child, plus another £2,400 (€2,800) for each other child.

But these income requirements will rise steeply from April 11th 2024.

How it works: What Brits in Europe should know about UK’s new minimum income rules

From this date the minimum a British national or long-term resident will need to earn if they want to return home will increase to £29,000 (€33,800) and up to £38,000 (€44,313) by spring 2025, although there will no longer be an additional amount for accompanying children.

Alternatively, families need to prove they have at least £62,500 (€72,884) in cash, which from 11 April will increase to £88,500 (€103,207).

‘Family life has been destroyed’

To put this in context the Migration Observatory at the University of Oxford suggests that around 50 percent of UK employees earn less than the £29,000 threshold and 70 percent less than £38,700. The Observatory also says that while the number of people affected by the policy is small compared to the overall UK immigration (family visas represent 5 percent of all entry visas), the impacts on concerned families can be “very significant”.

The Migration Observatory notes that other European countries apply income thresholds to sponsor foreign partners. Spain, for instance, requires sponsors to have an annual income equal to the social security salary. In Denmark, sponsors must not have claimed social benefits in the three years before the application. But in Spain and the US, the partner’s foreign income also counts towards the threshold.

So what does this mean for mixed British and international families living in Europe who might want or even need to return to the UK to live?

Campaigners have complained that many Britons with foreign partners have simply been “locked abroad” or families have been separated while they try to meet the minimum income or savings requirement.

Reunite Families UK, a non-profit organisation supporting people affected by the UK spouse visa rules, says this policy causes distress, especially for children.

Some 65 percent of respondents in research carried out by the group said that their child received a diagnosis of a mental health condition due to the separation of their parents.

“Since its introduction, this policy has destroyed the family life of countless people and children,” Matteo Besana, Advocacy and Campaigns Manager at Reunite Families UK said.

“Women have been forced to become single parents to their children and live away from their partner and the father of their children only because they didn’t meet the threshold.

“As shown by our research on the mental health impact of the policy, these are scars that, particularly for children, will be carried for the rest of their lives,” Besana said.

The people most likely to be affected are women, who tend to earn less or not work because they took on caring responsibilities. Also heavily impacted are people under 30 and over 50 years of age, people living outside London and the Southeast of England where wages are higher, and those belonging to specific ethnicities, according to the Migration Observatory.

The Local spoke to two British women, in Italy and Sweden, struggling to return to the UK with their families because of these rules.

More savings needed

Sarah Douglas, who has been living in Italy since 2007, was planning to return to Scotland with her Italian husband and three children.

“It was always our long-term goal to move back to the UK after we had our children and once we’d have saved enough to buy a home in the UK,” she said.

“In hindsight, we should have gone after the Brexit referendum, but in the beginning it wasn’t clear what the final deal would be and I naively assumed that situations like mine would be taken into account and we would have the right to return… Once it did become clear, we were in the middle of the pandemic and it wasn’t the time to move,” she said.

Having stayed home to take care of the children, Sarah will find it hard to land a job near her family in Scotland that meets the minimum income required to sponsor a foreign partner for a UK visa.

Her husband, a computer programmer, has been trying to get an employment visa, “but most of them state that you must already have permission to work in the UK,” Sarah says. And applying for British citizenship is not an option for a non-UK resident spouse.

‘People need to be aware’

Sarah and her husband are trying to save as much as they can, an alternative to the income requirement, but the amount they need is rising to almost £90,000, meaning it may be a long time before they have enough to move home.

While the aim of the UK’s policy is to ensure families moving to the UK are not a burden on the taxpayer, the reality is that people arriving on a family visa are not able to claim any benefits from the UK government.

“They should judge the overall financial viability of the family unit, rather than just the earning potential of the sponsoring partner,” Sarah says.

“We could live well with my husband’s salary and he could work remotely. We are stable and financially secure, but because I don’t earn any money, they say we are not able to support ourselves.”

Sarah says that most of the British public are unaware of the minimum income requirement.

“People think if you are married, your husband is allowed to come to the UK, but when I say no, it doesn’t work like that, they are really surprised. A lot of people are not aware of how this could affect them,” she said.

Looking for a job from abroad

Another British women who lives in Sweden with her South African husband and two children and plans to move to the UK told The Local how the minimum income requirement had put them in a “precarious and stressful situation”.

The woman, who preferred to remain anonymous said: “After having the two children, I was very fortunate to find a research position and do my PhD, which is a salaried position in Scandinavia, and now that I finished, we are looking to leave.

“But I need a job in the UK to sponsor my husband, and as a new graduate with limited work experience, it is not easy. It is even more difficult when you are not in the country and I missed out on opportunities because they wanted an immediate start. I really don’t want to move without my whole family,” she said.

She says the UK’s policy is “gendered and geographically discriminatory” because it makes life harder for women and also harder for anyone who is planning to move to a part of the country that isn’t in London, where salaries are higher.

“I feel exiled from my country and separated from my family there,” she said.

Her husband, she argues, has his own company and could continue working remotely from the UK, earning well above the requirement. He would also pay taxes and national insurance while having to pay the healthcare surcharge, a form of double taxation, she argues. But that would not entitle him to a visa.

“Our house is on the market now. We have booked removal companies for the 6th of June. The dog is booked for his transport. I just think this policy is so out of touch with the modern world,” she said.

Reunite Families UK has called on the government to recognise the right for British or settled citizens to bring their close family members to the UK and scrap the minimum income requirement. Alternatively, the group says the rules should take into consideration the earning potential of both partners and consider “the best interests of children”.

A petition on the UK parliament website asks the government to reconsider the minimum income policy. If it reaches 100,000 signatures, it will have to be debated in parliament.

This article has been produced by Europe Street news.

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