HR & Brexit: Uncertainties, uncertainties, uncertainties

Written on 9 Feb 2018

It will not have escaped anybody’s attention that Brexit is a fact.

Although in Brussels they are still bargaining about whether it will be a hard or a soft Brexit, a considerable uncertainty has raised among British expats living in the Netherlands as to the extent to which they will be seen as EU citizen, who can move freely through Europe, and also may live and work there.

If this is no longer the case, they have to leave the Netherlands straight away since they don’t have a residence permit. This also involves families with children going to school.

This is a real threat and implies that, given the seriousness of this worst case scenario, they should already make a decision about a possible nationalization to a Dutch nationality. This possible nationalization can have consequences for retaining their British nationality and the possibility of visiting their motherland to keep in sustainable contact with their family members there. Besides, considerable costs are associated with obtaining the Dutch nationality. In addition, decisions have to be made already with regard to the legal status of partners living together in Amsterdam/the Netherlands, of whom there is one British citizen and the other has a third-country nationality. Furthermore, parents who hold the British nationality itself but have children born in the Netherlands, will be faced with difficult choices. Another claimant is in uncertainty about the possibility of being able to (continue to) conduct one’s profession or business since (continuing to) traveling freely through the EU countries is required. In order to – among other things – put an end to this uncertainty, this group of expats requested the court in Amsterdam to ask clarity about this kind of matters from the highest European court. The Dutch State has defended itself against this claim, but without success.

In a recent decision the Dutch court agreed with the expats. The Dutch court intents to ask the following questions to the European Court of Justice:

  1. Does the withdrawal of the United Kingdom from the EU lead to the lapse of EU-citizenship of British nationals and as a result to the forfeiting of rights and freedoms deriving from the EU-citizenship, if and insofar as the negotiations between the European Council and the United Kingdom do not agree otherwise?
  2. If the answer to the first question is in the negative, should there be imposed any conditions or restrictions without loss of the rights and freedoms to be derived from EU-citizenship?

The argument of the Dutch State that it concerns a political issue that is not appropriate for (premature) judiciary interference was rejected by the court. The same applies to a number of other arguments of the Dutch State.

Why is this interesting?

Apart from the fact that this is, to my knowledge, the first decision of a Dutch court about the consequences of Brexit for British expats living in the Netherlands, the decision is also a boost for those who support the state under the rule of law. The court clearly chooses to side with a minority (i.e. the mentioned expats), those who have become victims of a decision of the a ‘majority’ (i.e. the Brexiteers), as shown in the nicely consideration below:

‘[..] Claimants seek for protection from the civil court against this threatening, and according to them partly already present, violation of fundamental rights. Granting such protection is in particular a judicial task. It belongs to the essence of a democratic constitutional state that, on an individual level, people who belong to social or political minorities will to a certain extent encounter protection in legal proceedings against the will of the majority.’

How can we help?

At Osborne Clarke we have been working on analysing the consequences of the Brexit for a longer period of time.

In the time to come, we will closely follow the developments in the field of Brexit for people living in the Netherlands on this blog.