On 1 January 2021, the United Kingdom waved the European Union off with the long-fought Brexit deal. Boris Johnson’s “Christmas present to the country” leaves expats and cross-border workers empty-handed: the free movement of persons and services stops. As “third-country nationals” on each other’s markets, they must stand on tiptoes to reach the shelves of lawful employment and residence rights. But an ancient treaty can aid entrepreneurs. In 1837 the Netherlands and the United Kingdom concluded the Treaty of Trade and Shipping. Julien Luscuere is an attorney and partner here at Maes Law. He is an expert in the effect of trade agreements in migration law, and was interviewed by the daily newspaper Trouw about this hidden but now particularly relevant historical alliance.
Brexit entered into force on 1 January and ended the free movement of persons and services between EU countries and the United Kingdom. Expats and cross-border workers will mainly suffer the effects. As ‘third-country nationals’, they must obtain work and residence permits. But according to immigration attorney Julien Luscuere, there is another way out.
In 1837, the Netherlands and the United Kingdom closed the Treaty of Trade and Shipping, says Luscuere. “This bilateral arrangement between King William I and Queen Victoria could rescue thousands of Dutch nationals and Britons who want be commercially active on each other’s territory because this agreement has not been terminated.”
The treaty states that in matters of trade, there are equal rights for both nationals. Luscuere: “In other words, free trade was allowed and thus free movement.”
This treaty was fell into obscurity when the United Kingdom joined the European Community (EC) in 1973. The common legal order of the EC superseded the treaty. But neither the Dutch not the British government has ever terminated the old agreement. And that is why it is still in force, believes Luscuere.
Treaties with the Americans and Japanese
The Netherlands once signed dozens of similar trade agreements. For a long time it appeared that these were no longer in force either because of numerous multilateral trade agreements or due to agreements in the European Union. But in 2000 a Swiss treaty from 1875 was also declared valid by the courts, even though Switzerland had already concluded an overarching agreement with the EC member states.
Americans enter relatively easily into the Netherlands for work, thanks to the Dutch-American Friendship Treaty of 1956. The Japanese are able to invoke that friendship agreement with the United States once again, thanks to a trade agreement from 1912. This makes it relatively easy for a Japanese national to come to the Netherlands – a start-up capital of EUR 4500 is all that is needed for them to work as an entrepreneur or self-employed person (zpp’er).
There are, however, jurists who believe that the Netherlands cannot rely on old trade agreements because they may conflict with Union interests. The European Commission can force the Netherlands to terminate the old trade agreement with the United Kingdom, admits Luscuere. This can be done, for example, if so many Britons come to work here that the rest of the EU is seriously affected. But the chances of that are slim, says the attorney.
“Long-lost photo album”
Luscuere: “If the present judgment becomes precedent, British citizens in the Netherlands could live and work as entrepreneurs or freelancers, like the Americans and Japanese, without many conditions. “Conversely, the Dutch on the other side can claim the same benefits that the UK has granted to nationals of other countries, like Ireland.”
The British still have to implement the 1837 treaty agreement into national law. In the Netherlands, the Constitution states that provisions in treaties have direct legal effect, but in the legal system of the UK that works differently.
Luscuere: “The ball is now in the British government’s court. But it seems to me that they will welcome this legal heirloom as a long-lost photo album from their youth.”