The Vote

Expat Briefing Editorial Team, 20 August, 2013

Just because you have emigrated to another country, does this mean that you should automatically lose the right to vote in the land of your birth?

It is easy to see why some might argue in the affirmative when this question is put to them: if you have chosen to sever ties with your home country and seek a better life elsewhere, then why should you retain the right to participate in elections which could affect the lives of your fellow countrymen, but not yourself? On the other hand, things aren’t always that simple. For those of us born in democratic countries, the vote is one of our most precious rights, so why should this right be so easily extinguished the moment you leave for foreign shores? What’s more, it is rare that an expat will have completely severed links with their country of origin, even if they are living abroad on a permanent basis. In most cases family ties will still exist, and they might, for example, be putting their children through school there too. There is also a fair chance they will still be paying tax to the Government in their former home, on income or other assets like property.

The purpose of this briefing is not to argue the case one way or the other, but to draw attention to an issue that has received increasing attention over the past few weeks – cases which have highlighted just how different the rules are from country to country, and how some expats value their right to have a say in elections that might affect their families or their property back home, especially while they are still be taxed there.

One recent example that brought the expat vote issue to light was the case of Harry Shindler, a British national who has lived in Ascoli Piceno, Italy, since 1982 with his Italian wife following his retirement.

Under primary legislation in force in the United Kingdom, British citizens residing overseas for less than 15 years are permitted to vote in parliamentary elections in the United Kingdom. Having lived in Italy for over 30 years then, Mr Shindler clearly no longer meets this requirement, and when he challenged this law in the European Court of Human Rights (EHCR) on the basis that it had completely disenfranchised him while at the same time breaching his right to freedom of movement under the EU Treaty, the judges disagreed.

Mr Shindler complained that no time-limit should be imposed on the right of EU citizens resident abroad to vote in their country of origin while they retained the nationality of that country. He maintained that he had retained very strong ties with the UK as a retired serviceman of the British Army receiving a pension from the State paid into a British bank account on which he paid tax and had family members in the UK.

Unfortunately for Mr Shindler though, the Court was satisfied that the 15-year rule legitimately confined the parliamentary franchise to those citizens with a “close connection” to the United Kingdom and who would therefore be most directly affected by its laws. It also argued that 15 years was “not an insubstantial period of time” to allow an émigré to continue to vote. The Court noted that if Mr Shindler returned to live in the United Kingdom, his right to vote as a resident would be restored. Therefore, it cannot be said that the 15-year restriction “impaired the very essence of Mr Shindler’s rights.”

Interestingly, the Court also noted a growing awareness at European level of the problems posed by migration in terms of political participation in countries of origin and residence, and that there was a disparity in approaches. Nonetheless the Court chose to emphasise the importance of leaving Governments “room for manoeuvre,” or a “margin of appreciation” with regard to laws in this area.

The judgement has, however, piqued certain sections of the British expat community. In a submission to the UK Parliamentary Working Group on Overseas Voting by Margaret Hales, a British citizen living in Spain, the lack of official information on the 15-year rule was described as "shoddy practice in the extreme."

Mrs Hales explained that she had only become aware that she would lose her vote after she had been living in Spain for a year, and that MPs and Peers are uninformed on the subject.

In 1997, Hales received an MBE for services to politics, and since relocating to Spain she has campaigned on voting awareness among British expats. Indeed, campaigning against disenfranchisement seems deeply ingrained in her DNA because, as her submission explains, her sense of community service may have come from her ancestor Emmeline Pankhurst, who fought for women’s voting rights in the UK in the late nineteenth and early twentieth centuries.

Hales observed that disenfranchisement applies even to retired service personnel who have seen military action, and even though citizens must continue to pay tax to HM Revenue and Customs. She also quoted Viviane Reding, Vice-President of the EU Commission, as stating that: "The practice of some Member States of depriving their citizens of their right to vote once they move to another EU country is effectively tantamount to punishing citizens for having exercised their right to free movement."

Hales further complained about negative perceptions of expats among MPs and the media, arguing that many were working abroad on behalf of British interests, or had retired abroad after serving their country overseas. Speaking from her experience of Spain, she explained that many British expatriates maintain a British way of life and an interest in British affairs.

With the approval of the ECHR, it seems highly unlikely now that the British Government will seek to extend the 15-year rule, although it could certainly do more to help expats by raising awareness of it. Still, British expats should count themselves lucky that they don’t live under the far more complex Australian rules, and with Australia's federal election due to take place next month, Australian expats are complaining that the existing law makes it "difficult or impossible" for most overseas Australians to cast their votes.

Currently, an enrolled Australian who has been abroad for less than three years can register as an overseas voter, although they must indicate an intention to return to Australia within six years of their departure. After six years, voting status can be retained only on a year-by-year basis, and again an intention to return "at some time" must be expressed. Overseas Australians who miss an election may also be removed from the electoral roll. Those who lose their enrolment status can have it restored only by returning to Australia and taking up residence again for at least one month.

The Southern Cross Group, which lobbies for reform, argues that these restrictions are unfair, and compare unfavourably with the situation for expats of other countries. Anne MacGregor, who co-founded the group, told the media recently that many Australians were surprised to discover they could no longer vote, and she described the Australian diaspora as a "big fleet of roaming ambassadors." She added that expat votes could have an important impact on marginal seats.

As regards the upcoming election, those Australians who remain eligible to vote can register as postal voters. From August 26, overseas voting in person will be available at most Australian Embassies, Consulates and High Commissions.

Many Australian and British expats must envy their American counterparts, who are given lifelong voting rights under US law. Aussies and Brits would not, however, envy their tax position, because America is almost unique in taxing its citizens on the basis of nationality, rather than residence (or in the case of the UK, domicile – see our previous feature on the newly introduced statutory residence test), and this means that they pay tax to the Internal Revenue Service (IRS) on their worldwide income regardless of where they live.

We have highlighted in a previous briefing how some Congressmen, and probably the Obama administration too, would like to tighten the net still further on US expats. In fact, many expat Americans are now taking the rather drastic step of disenfranchising themselves by handing in their passports and taking up a new nationality in order to escape the suffocating US tax stranglehold.

According to figures provided by the IRS and published recently in the Federal Register, there was a six fold increase in the number of American citizens living abroad who gave up their United States passports in the second quarter of this year, compared to the same three months in 2012. American expatriates who renounced their citizenship during the three months to end-June 2013 rose sharply to 1,130, from 679 in the previous quarter and only 189 in the same period last year.

These numbers are probably small relative to the millions of Americans currently living overseas. However, given that American citizenship is so highly prized by many people around the world – and not least by Americans themselves – the decision to renounce it can’t be one that’s taken lightly.

So the sharp rise in the number of Americans handing back their passports just goes to show that there is a balance to be struck between the rights and responsibilities of citizens, and, for that matter, Governments as well.

In terms of expat voting rights, perhaps the UK has the balance about right. The ECHR certainly seems to thinks so. But some British expats, like Margaret Hales, clearly think not. Australian law, which requires expats to jump through a series of increasingly impossible hoops to retain their voting rights, looks on the surface to be pretty unfair. Meanwhile, the Americans have the best and worst of both worlds.

Unsurprisingly, given the cavalier abandon with which Governments now seem to treat their citizens’ right to a private life, the overall balance is usually tilted in favour of Governments. For most expats, it seems inevitable that they will lose the right to vote at some point. But Governments in general never seem to completely lose the right to tax.