By Stephen Coutts (Dublin City University)
The European Union is a Union of states and citizens. When deciding to withdraw from the European Union, the British people have decided to withdraw from an organisation that purports to create relations not only between governments and states but equally between communities of individuals and citizens. Union citizenship is the main mechanism by which that relationship is now managed. Millions of individuals rely on the status of Union citizenship throughout the Union and a considerable number of them will be affected by the decision of the UK to withdraw, including both UK nationals abroad and EU nationals in the UK. The current post will look at how that status and the relations it has established between individuals and states throughout the Union may be wound down and what arrangements might replace it with regard to the UK. Given the current state of the negotiations what follows, like much in the Brexit debate, is speculative and at best traces possible options and difficulties. What is certain is that dealing with the thorny issue of Union citizenship and free movement post-Brexit is far from simple and no easy answers present themselves.
Citizenship for all – Rottmann en masse?
If we can be sure of anything in this discussion it is that UK nationals will lose their Union citizenship. According to Article 20 Treaty on the Functioning of the European Union ‘every person holding the nationality of a Member State shall be a citizen of the Union’, a provision that has normally be held to mean that only those holding the nationality of a Member State shall be a citizen of the Union. Once the period of negotiation under Article 50 Treaty on the European Union (TEU) has been completed, the UK will cease to be a Member State of the EU and its nationals will therefore cease to be citizens of the Union.
An argument has been raised, based on the Court’s judgment in Rottmann,[i] that the very status of Union citizenship could somehow either survive or even prevent Brexit. As Davies has convincingly argued,[ii] this is highly unlikely and would amount to an unprecedented judicial coup, even by the Court of Justice’s standards. Rottmann provided that once a Member State has granted national citizenship and hence Union citizenship, the situation of such an individual falls within the scope of Union law and withdrawing that status must be subject to review in light of Union law. Aside from the convincing legal arguments–that once withdrawn from the Union, the UK will no longer be subject to Union law, including the Rottmann ruling; that such a result would be inconsistent with Article 50 on withdrawal; and that in any case Rottmann allows for denaturalisation so long as it is for objective reasons and is proportionate (a test that is likely to be met in the case of Brexit)—Davies makes the more fundamental point that such a decision would be a radical overturning of national sovereignty and would misconstrue the nature of the Union.
Amongst other things, Article 50 TEU reflects the fundamental principle of national sovereignty and though it national democracy. To seek to overturn it through the use of the status of Union citizenship would amount to a denial of the ability of the United Kingdom as a political community to take a collective decision regarding its own fate as a member of the Union. The fundamental norm of democracy is the principle of majority decision making within a legitimately constituted political community, such that individuals agree to accept the decision of the majority even if they find themselves in the minority. An argument that Union law could intervene to ‘protect’ the rights of individuals in the UK that are being dragged from the Union and denied Union citizenship against their will would amount to an argument that the United Kingdom acting under Article 50 TEU is not competent as a democratic political community to bind its own minority. More fundamentally, it would mean the European Union is a Union of citizens before a Union of peoples or Member States and that the rights and status of Union citizenship somehow trump the rights of Member States and the political communities they represent, a view that as Davies points out, is increasingly untenable, if indeed it was ever a credible position.
UK nationals will thus lose their Union citizenship, and Union citizens will lose their rights qua Union citizens in the UK (they may retain rights under some other status in a post-Brexit arrangement, such as within the EEA see further below). For the vast majority of people this relates to a status that they have not and may never have used. What of those individuals who currently exercise Union citizenship rights in another Member State; both UK nationals in other Member States and EU national in the UK? This is not an insignificant number of individuals, some 1.2 million British born people living elsewhere in the Union and 3.3 million non-UK EU nationals residing in the UK.[iii]
Given these numbers, one must assume that some arrangement will be made for such individuals and indeed, contingent on reciprocity, this seems to be the view of Prime Minister May.[iv] It must be assumed that the vested rights of such individuals will be protected in any withdrawal deal. There will thus be a group of dwindling individuals in both the EU and the UK carrying over rights from the pre-Brexit era, a legacy of an earlier time when these political communities were more open to each other and when boundaries were more porous.
A number of details of an arrangement for such ‘legacy citizens’ will have to be worked out. Firstly, on what date do such vested rights need to have been acquired, the 23 June 2016, the date when Article 50 TEU is invoked or even the formal date of exit? It may make sense to fix the date as 23 June 2016 but until exit formally takes place Union law, including the law relating to free movement and citizenship, continues to apply and individuals are as free as they have ever been to move. Given the uncertainty regarding when Article 50 TEU may be triggered[v] and when a withdrawal deal may be finalised, it is likely that this situation will persist for years. Is it reasonable to say that any Union citizens who use their rights during this interregnum will automatically lose them in toto upon withdrawal?
Secondly, not all Union citizens are created equal; it is not a monolithic status and with the broad category of Union citizenship lie a number of sub-categories with varying rights. Will such ‘legacy citizenship’ apply only to individuals who have acquired certain rights or a fixed status such as permanent residents? What of family members, job seekers, students, the growing numbers of those with less than secure employment?[vi]
Thirdly, what of the rights yet to be acquired of such individuals? Union citizenship is a dynamic status that is progressively strengthened with additional and more secure rights being added as time passes. Will this continue to be the case for individuals currently exercising rights abroad? Can individuals resident for say three years upon Brexit be entitled to permanent residence upon successful completion of five years residence as per Article 16 of the Citizenship Directive?[vii] What of the enhanced protection offered to residents of more than 10 years contained in Article 28 Citizenship Directive?[viii] Logically, it would make sense to protect these prospective rights that arguably already exist in latent form for such individuals. Politically however, given the key role that migration and in particular the desire to restrict migration played in the Brexit referendum campaign, there may be pressure to resist such an outcome.
Fourthly, will it be possible for this status of legacy citizenship to lapse if an individual leaves or returns to the UK for a certain period of time? By analogy with the Citizenship Directive itself such an outcome is a likely possibility.[ix] However, if this is the case and if post-Brexit free movement rights are more restrictive, it may create a disincentive for individuals to leave the UK, if to do so would place a status that can no longer be reacquired at risk.
Finally, the operation of all of such rules—the date when vested rights need to be acquired, the different treatment of different Union citizens, the continued acquisition of rights or otherwise—will be significantly complicated in practice by the lack of a residence registration system in the UK, a complication that will be compounded if the UK continues to permit visa-free travel from EU states, a likely necessity if the UK wishes to preserve the common travel area with Ireland.[x]
The Uncertain Future…Problems with an EEA Arrangement
Finally, what form of status will replace Union citizenship for UK-EU relations? Given the extremely early stage we are at in the withdrawal process and the seeming lack of preparation on the part of the UK government, the comments that follow are speculative at best. The assumption is that some form of deal will have to take place, most likely using the European Economic Area (EEA) as a template. It is highly unlikely at this stage that the UK will be offered access to the internal market in goods, services and capital but somehow avoid opening its borders to the free movement of persons. The EEA framework is not ideal from the UK’s perspective, particularly if it wishes to make true its desire to ‘take back control’. What is certain is that this is likely to be one of the more divisive and difficult aspects of the negotiations in which national economic interest conflicts squarely with political expectation: how to square the circle of single market access with some limitation on free movement rights?
The EEA includes all four fundamental freedoms, including the free movement of persons but the EEA does not include Union citizenship.[xi] EEA nationals do not enjoy the status of Union citizenship and the political rights of Union citizenship such as those contained in Article 20(2)(b) TFEU or in relation to the Citizens’ Initiative.[xii] Thus the Zambrano jurisprudence on the status of Union citizenship contained in Article 20 TFEU and the set of transnational[xiii] and now supranational political rights[xiv] will not apply in an EEA type arrangement.
However, the EEA does carry over the bulk of rights relating to the free movement of persons and social security, including for both the economically active and inactive. In particular Directive 2004/38/EC—the Citizenship Directive—does form part of the EEA acquis.[xv] The fact that Union citizenship itself does not form part of the EEA Agreement does not appear to have influenced the interpretation of the Directive and the EFTA Court has used jurisprudence of the Court of Justice to inform its own interpretation of those provisions.[xvi] Will such an outcome be acceptable to the UK in light of the prominent place concerns in relation to free movement played in the referendum campaign? While the substance of the rules may be similar it is worth pointing out that the EEA is a looser legal arrangement than the Union with more limited forms of direct effect and possibilities of limiting preliminary references.[xvii] Nonetheless, it does remain subject to interpretation by a supranational Court, a fact that may not be palatable given the fact that sovereignty concerns in the UK pre-Brexit appeared to centre on judicial sovereignty in particular.[xviii]
There is the possibility of resurrecting the Cameron deal from February 2016 that contains restrictions on welfare transfers (in particular child benefit), family reunification rights, the further possibilities of expulsion for criminals and of course the famous emergency break of up to seven years limitations on in-work non-contributory benefits for Union nationals.[xix] This outcome is however unlikely. From the Union’s perspective there is no incentive to place a deal back on the table that was rejected by the British people. From the UK’s perspective again it is unclear why a deal that was rejected by the majority of the electorate would now suddenly be acceptable, in particular given the fact that the proposed modifications to free movement law would only temporarily restrict welfare entitlements rather than allowing the possibility of restricting actual movement. Furthermore, the emergency break can only be ‘requested’ by the UK; any proposal must come from the Commission and requires the agreement of the Council. Granting Union institutions such power to determine when such an already limited mechanism can be used does not seem to fit with the UK’s desire to ‘take back control’.
The EEA Agreement in Article 112 does contain a ‘safeguard’ mechanism to allow a contracting party to unilaterally take ‘appropriate measures’ if ‘serious economic, societal or environmental difficulties’ emerge, a provision that has been invoked by Liechtenstein.[xx] Nonetheless, despite the apparent attractiveness of this option, it is unlikely to be the panacea sought by Brexiters allowing the UK to permanently restrict or control free movement of persons. Firstly, the provision clearly envisages an emergency situation. It is unclear to say the least if the UK’s current immigration situation amounts to such an emergency. Secondly, it is intended to be a last resort: ‘priority shall be given to such measures as will least disturb the functioning of this agreement.’ Thirdly, it is intended to be temporary. Such measures should include an expiry date and should be subject to review every three months.[xxi] The rather exceptional position of Liechtenstein, obtaining the permanent right to control via a quota system free movement of persons, is unlikely to be replicated in the case of the UK; the UK is far too significant a partner and is subject to far less migratory pressures than the microstate of Liechtenstein, whose population of 37,500 contains 34% or 12,000 non-nationals in 2005.[xxii] Fourthly, while not subject to formal control by external institutions, there is a requirement of notification and on-going consultation with other partners including the Union with a view to finding a resolution. Fifthly, if the measures persist other contracting parties, again including the Union, can take reciprocal measures restricting rights.[xxiii]
Union citizenship and free movement lay at the heart of the Brexit debate and are likely to constitute the most difficult knot to unravel in the negotiations both for withdrawal and for the post-Brexit relationship with the Union. Firstly, unlike many aspects of Union law, Union citizenship is definitively off the table. UK nationals will no longer be Union citizens, they will no longer enjoy a supranationally guaranteed status of quasi-membership in other Member States throughout the Union and will also lose any direct political rights to influence rule-making in Brussels. Dealing with those individuals who currently do exercise some transnational rights is not simple and many details will have to worked out but it is likely that this will be managed in the course of the negotiations; no parties at this stage appear willing to sacrifice the vested rights of millions of individuals both in the UK and across the Union, especially given the numbers are significant on both sides. The least clear aspect of the debate is what arrangements replace Union citizenship in a post-Brexit world and indeed this issue goes to the heart of the unpalatable choice facing the British government between single market access and free movement of persons. The EEA appears to be the only option available for full market access but it is far from clear if the still significant degree of free movement under the EEA will be acceptable to those who voted for Brexit.
Union citizenship has failed. It has failed in its most fundamental role, at least in the UK, that of generating a sense of belonging and community, a sharing of a political fate, with individuals across the Union. At least as viewed from the abroad, the Brexit campaign was relentless pragmatic and economic, concerning with the benefits and costs of a purely transactional relationship. What was missing was any attempt to bring a sense of the values and ideals of a community of states sharing a common destiny. Part of that commitment is a mutual-opening of communities, willing to accept the Other. Union citizenship at its very core is about belonging elsewhere. Waking up on 24 June 2016 many individuals across the Union but especially in the UK must have felt the absence of that belonging.
Brexit: Democracy, Markets and the Regions’, DELI/LGJD Joint Insta-Symposium
[i] Case C-135/08 Janko Rottman v Freistaat Bayern EU:C:2010:104,  ECR I-1449.
[iii] Migration Watch UK, The British in Europe – and Vice Versa (MW 354, 2016).
[iv] Stephanie Kirchgaessner, ‘Theresa May: EU citizens’ rights depend on fate of Britons abroad’ The Guardian (London, 27 July 2016) <http://www.theguardian.com/politics/2016/jul/27/theresa-may-eu-citizens-rights-britons-abroad> accessed 9 August 2016.
[v] Prompting some satirical comment, see ‘’I’ve even checked down the Number 10 Couch’ Outrage as Theresa May Misplaces Article 50’ (Waterford Whispers, 5 August 2016) <http://waterfordwhispersnews.com/2016/08/05/i-even-checked-down-the-number-10-couch-outrage-as-theresa-may-misplaces-article-50/> accessed 9 August 2016.
[vi] For increasing differentiation between the economically active and inactive see Charlotte O’Brien, ‘I Trade, therefore I Am: Legal Personhood in the European Union’ (2013) 50 CML Rev 1643 and even between the more economically active see Charlotte O’Brien, ‘Civic Capitalist Sum: Class as the New Guiding Principle of EU Free Movement Rights’ (2016) 53 CML Rev 937.
[vii] Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Citizenship Directive)  OJ L 158/77.
[ix] Ibid art 16(3) and (4).
[x] It is somewhat outside the scope of this note but the Common Travel Area is dependent on continued informal parallelism between the visa policy of the UK and of Ireland (see Bernard Ryan, ‘The Common Travel Area between Britain and Ireland’ (2001) 64 MLR 855). Ireland will of course have to maintain visa-free travel for EU nationals. If the UK decides to impose visa requirements on (some) EU nationals and if it is serious about enforcing these requirements, it is difficult to see how a borderless CTA could be maintained, especially in light of the not insignificant numbers of EU nationals resident in Ireland. It is this question of future UK visa-policy that is perhaps the most important variable in the CTA debate.
[xi] See art 8, Decision 158/2007 of the EEA Joint Committee amending Annex V (Free Movement of workers) and Annex VIII (Right of Establishment) to the EEA Agreement  OJ L 124/20.
[xii] See Regulation 211/2011/EU on the citizens’ initiative  OJ L 65/1.
[xiii] Directive 94/80/EC laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in munipal elections by citizens of the Union residing in a Member State of which they are not naionals  OJ L 368/38 as amended by Council Directive 96/30/EC  OJ L 122/14 and Directive 93/109/EC laying down detailed arrangements for the exercise of the right to vote and stand as a candidate in elections to the European Parliament for citizens of the Union residing in a Member State of which they are not nationals (Uniform Election Procedure)  OJ L 329/34.
[xiv] Case C-650/13 Delvigne EU:C:2015:648.
[xv] Decision 158/2007 of the EEA Joint Committee (n 11). Interpreted to have binding effect within EEA EFTA states in Case E-15/12 Jan Anfinn Wahl v the Icelandic State  EFTA Ct Rep 534.
[xvi] See Jan Anfinn Wahl v the Icelandic State, specifically in relation to expulsion measures.
[xvii] See Ciarán Burke, Ólafur Ísberg Hannesson and Kristin Bangsund, ‘Life on the Edge: EFTA and the EEA as a Future for the UK in Europe’ (2016) 22 EPL 69.
[xviii] See Graham Gee and Alison Young, ‘Regaining Sovereignty? Brexit, the UK and the Common Law’ (2016) 22 EPL 131.
[xix] European Council, European Council Conclusions (18-19 Feburary 2016, EUCO 1/16).
[xx] Decision 1/95 of the EEA Council on the entry into force of the Agreement on the European Economic Area for the Principality of Liechtenstein OJ L 86/58, 80.
[xxi] See Art 13(4).
[xxii] Country Report of the Principality of Liecchtenstein to the 13th OSCE Economic Forum on demographic trends, migration and integration belonging to national minorities (OSCE, EFDEL/50/05, 2005).
[xxiii] Art 114 EEA Agreement.