By Rachel Davies (Durham Law School, Durham University)
The result of the UK’s recent referendum on its membership of the European Union has thrown up extraordinary amounts of uncertainty, not least of all for EU Citizens residing in the UK as well as their British counterparts living in other Member States. Whilst the new Prime Minister of the United Kingdom, Theresa May, has (as yet) not committed to any guarantees for the resident individuals and families within the United Kingdom, there have been calls from the likes of German officials to relax certain citizenship laws in order to avoid “raising [the] drawbridge” on young Brits. This opportunity would be welcomed by a whole host of UK nationals who will presumably be stripped of their EU Citizenship in light of Britain leaving the European Union and are thus seeking other avenues to enable engagement with the free movement mechanisms operating on the continent.
Who is Offering?
Sigmar Gabriel, the German Vice-Chancellor has stated that the offer of dual nationality to British citizens in spite of Brexit would be raised in his country’s national elections taking place next year. He claims that British youths living in “Germany, Italy or France” should be exempt from having to withdraw their British nationality, despite German law’s current stringent restrictions on offering dual citizenship to non-EU nationals (which ostensibly Britons will become post-Brexit). Evidently not one to mince his words, the Vice Chancellor stated that his basis for such an offer was his belief that it is a “good sign that the youth of Great Britain are more clever than their political elite” – a blatant reference to the fact that 75% of those aged 18-24 voted to remain, with youth voter turnout being almost twice as high as preliminary polls suggested. Notably, the offer seems to have some form of cross-party support, with the leader of the opposition Green Party rallying around the notion of relaxing Germany’s nationality laws and thus granting opportunities ranging “from the right of residence to the offer of citizenship” for Britons living in Germany.
What are they Offering?
In essence, Gabriel is proposing the acquisition of EU Citizenship for Britons post-Brexit via the granting of German citizenship. This is an effective proposition because in accordance with Article 9 of the Treaty on the European Union (TEU) and Article 20(1) of the Treaty on the Functioning of the European Union (TFEU), a citizen of a Member State of the European Union (such as Germany) is automatically granted EU Citizenship. In this manner, it is up to the Member State to decide to whom to grant nationality, but once this has been awarded EU Citizenship rights will be derived. The key Treaty Article in relation to EU Citizenship is that of Article 21 TFEU, which states in subsection 1 that “Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States”. Although membership of the Economic European Area (EEA) would bestow the free movement of persons principles upon individuals, the adoption of a Norwegian-style model is not guaranteed and not without its criticisms regarding its suitability for the British economic and political identity. Therefore, the methodology of securing the right to travel, work and reside with relative ease by obtaining the nationality of an EU Member State appears a most attractive opportunity. A prospect that – according to German officials – is already being sought after by “quite a number of Brits”. The German Nationality Act 1913 – or ‘Staatsangehörigkeitsgesetz’– is the primary piece of statute governing the granting, retention and rejection of German nationality. Under the current system, non-EU residents are normally required to have lived in Germany for 8 years before becoming eligible for German citizenship. This term can be reduced somewhat through the passing of a naturalisation test or attending an integration course pursuant to section 10(3) of the Nationality Act.. The German Ministry has already confirmed that a Briton in the situation outlined above would “not be deprived of their newly acquired German nationality even if/when the UK subsequently leaves the EU”.
The Thorny Issue of Dual Nationality Under German Law
The key issue of the Vice-Chancellor’s proposal is that the granting of dual nationality because s10(1).4 of the Nationality Act stipulates that entitlement to naturalisation is dependent on the individual giving up or losing their previous citizenship. The reasoning behind this is often attributed to historical notions of national identity. A number of individual exemptions are contained with s12(1) – such as the existence of conditions whereby the originating country makes no provision for rescinding its citizenship. However, a general exemption applies to persons who are citizens of another EU Member State or Switzerland (s12(2)). Evidently, if/when the UK leaves the Union, its Citizens will no longer be able to rely on the s12(2) exemption and it is at this point where advocates for reform are arguing for departure. The junior coalition partner in the Bundestag clarified Mr Gabriel’s comments expressed above as referring “specifically to Britons living in Germany, so that they would be able to retain their UK citizenship even if applying for German naturalisation in a post-Brexit world”. This would be a positive move to encourage Britons to continue living and working in the EU as they would be afforded the security of maintaining their British citizenship and its visa-free access to 175 countries. With this outlined, one of the core remaining queries to the Vice-Chancellor’s proposal is how this change would relate to young Brits in particular as opposed to British people in general. The speculation being made in this article is that the age of the applicant would have no legal bearing of whether or not on the rules for the acquisition of German Nationality but rather his reference to age and voting stance on the referendum was political in nature. The category of those he is targeting are those willing to be part of the European project (as indicated by their vote to remain), who already reside in their country and/or are most likely to accrue years of residence through studies.
Comparison to Position of EU Citizens within the UK
A termination of the rights regulated by Union-level citizenship would result in current EU residents within Britain being subject to UK immigration laws alone. Domestic rules include, inter alia, a points based system for economic migrants (Immigration Rules Part 6A) as well as stringent visa requirements. These are far more restrictive than those inbuilt into EU Citizenship – with publications claiming that many EU citizens resident in the UK would currently fail to meet the standards set by British law.
Furthermore, in contrast to this seemingly embracing willingness to the potential of the European community, the political dialogue regarding the estimated 3 million EU Citizens within the UK seems to be less positive. The newly appointed British PM made a statement claiming: “We will need to look at this question of people who are here in the UK from the EU and I want to ensure that we’re able to not just guarantee a position for those people but guarantee the position for British citizens who are over in other member states…Nobody necessarily stays anywhere for ever.”
This current thread of political rhetoric has prompted outcry, exemplified in an open letter from politicians, trade union leaders and industry urging the government to avoid reducing individuals to mere “bargaining chips”. With political pressure mounting and research indicating that 84% of the British public wish to let EU migrants stay (including 77% of leave voters) it is clear that this aspect of the referendum fallout is imbued with an unequivocal urgency.
‘Brexit: Democracy, Markets and the Regions’, DELI/LGJD Joint Insta-Symposium