Would expat rights be lost if trade deal talks fail?

A reader asks: I have heard that if we leave with the negotiated Brexit deal on January 31 but then do not have a trade deal in place by the end of 2020 we will crash out with no deal – does that mean all the expatriate rights would be lost again? R.F.

No, it does not, the confusion stems from the fact that some media have recently been using the expression ‘no-deal’ to essentially mean ‘no trade deal’.

After this Thursday’s election there are several possible scenarios, including Labour requesting another extension for more negotiations, followed by a referendum on the ‘deal’ or remaining in the EU (a referendum is also favoured by several smaller parties such as the SNP and Greens, while the Lib Dems wish to simply cancel Brexit). The European Court of Justice has ruled that the UK has the right to cancel Brexit as long as it remains an EU member.

However if the Conservatives win, especially if there is an overall majority, then the UK will almost certainly leave the EU at the end of January with the deal negotiated by Boris Johnson and a transition period would begin during which Britons living abroad in the EU should not notice significant changes to their rights.

The ‘deal’ consists of a Withdrawal Agreement including payment of the ‘divorce bill’ (liabilities of the UK to the EU budget), expatriates’ rights, and arrangements for the border of Ireland and Northern Ireland – plus a Political Declaration on the future relationship.

The latter outlines the kind of relationship the UK and EU hope to have, to be negotiated after Brexit day during the transition period. The idea of the transition period is that during it, the UK would no longer technically be an EU member, but in other respects the status quo would continue for the time being.

As far as expatriates' rights go, the ‘Johnson’ deal is the same as the ‘May’ deal, in that it would safeguard many of the rights enjoyed by Britons who are already living aboard in the EU before Brexit or before the end of the transition period, such as the right for UK state pensioners to continue to have their healthcare in France paid for by the UK and to have their state pensions uprated annually.

Some things however would change: Britons would have to apply for residency cards after the end of the transition period, some work qualifications may no longer be recognised if Britons have not applied for them to be validated by Brexit day, Britons could no longer vote or stand in local French mairie elections or vote in EU elections and Britons would no longer have freedom to move to other EU countries without visa and residency card applications or freedom to work around the EU.

In the case of leaving with a deal, France would also have to pass new legislation allowing Britons to continue in fonctionnaire jobs such as being a schoolteacher in a state school or a nurse in a state hospital (at present this has only been legislated for in the no-deal scenario).

Leaving with a deal would also mean it would be more difficult for Britons to come to France in future than it is now and it may no longer be possible, for example, for poorer pensioners. Second home owners would also be limited to no more than 90 days in any 180-day period and may have to take out private health insurance for their trips if no replacement for the Ehic system is negotiated.

In the case of the UK leaving with the deal UK Prime Minister Boris Johnson insists that the UK will leave by the end of 2020 and that he would not ask the EU for any further extension to the transition period (the deal allows the possibility for an extension by mutual agreement, at the latest to the end of 2022).

This means that there will be 11 months in which to negotiate a trade deal with the EU, new treaties on air travel; healthcare, pensions and social security; educational cooperation including Erasmus+, and on defence and security cooperation.

Many commentators are sceptical as to the feasibility of this.

If the UK should ‘crash out’ at the end of 2020 because the negotiations cannot be completed on time this would have major repercussions for trade between the EU and UK (with the immediate imposition of trading tariffs and more paperwork as the UK ceased to be aligned with EU rules), and for the  UK / EU relationship. It is also likely the pound would plunge again, penalising Britons in France living on incomes in pounds.

However it would not cancel the Withdrawal Agreement, which would be then already be an international treaty and remain operational – in other words existing British expatriates would still keep their uprated pensions and healthcare arrangements etc.

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