European Citizenship after Brexit

Front matter

PALGRAVE STUDIES IN EUROPEAN | UNION POLITICS | oaloraverpivot

EUROPEAN CITIZENSHIP AFTER BREXIT

Freedom of Movement and Rights of Residence

Introduction

Abstract The book aims to explain the problems faced by European citizens in the UK and by UK citizens residing in member states of the European Union (EU) after Brexit. Particular emphasis is laid on freedom of movement and rights relating to residence. A conceptually solid approach is suggested so as to disentangle the various aspects of the question. No matter its shape, Brexit will need to imply changing the territorial scope of application of the EU Treatises. This will bring changes to the personal sphere of validity of EU law. The citizenry is expected to shrink in size and change in composition, and some parts of it will be left in potentially vulnerable positions.

Keywords European citizenship - Brexit - United Kingdom - Freedom of movement - Right of residence - EU law

The referendum on 23 June 2016 triggered a wave of concern on matters political, constitutional, international and more. There are many issues surrounding the procedure of exiting, when the UK will do it, about the constitutionally legitimate procedure to do so, about the drafting techniques of the treaties, in parallel or subsequently, that Article 50 will require on exit and future relations, and how the Brexit withdrawal Treaty may be enforced, what happens if the UK changes its mind during the negotiations, and more.’

© The Author(s) 2017 1 P. Mindus, European Citizenship after Brexit, Palgrave Studies in European Union Politics, DOI 10.1007/978-3-319-51774-2_1

The question asked here is: What are the consequences that Brexit may entail for the regulation of nationality and migration, taking into consideration European Union (EU) citizenship? The book investigates European citizenship after Brexit, in light of the functionalist theory, that is, a general theory that develops an epistemologically strong account of the concept of status civitatis (Mindus 2014a, b; Cuono 2015). Such a theoretically informed inquiry is warranted for a number of reasons and enables relevant policy suggestions.

As things currently stand, outcomes of negotiations cannot be foreseen. Focus here will be on determining what resources, if any, are available to the legal scholar regardless of what may happen in negotiations. Therefore, this study is made under the assumption of a non-negotiated withdrawal.

Many have, of course, pointed out the unlikelihood of non-negotiated withdrawal. Yet, I will operate under this assumption, or the assumption of a withdrawal treaty making no mention of free movement rights, which for the present purposes would amount to the same thing. I have chosen to operate under this assumption because the question of remedies in the absence of an agreement is relevant since there is no guarantee that any future agreement would have terms that are favourable to all affected groups and/or that any agreement would claim comprehensiveness. The political likelihood of determinate negotiational outcomes is therefore secondary to establishing the legal situation that would prevail in absence of agreements to come. Knowing what negotiations can do helps us assess the quality of the output of these.

So without engaging in predictions about what is likely to happen politically or in the negotiations, the book aims to explain the problems faced by European citizens in the UK and by British citizens resident in member states of the EU after Brexit. Particular emphasis is laid on freedom of movement and rights relating to residence. This allows the reader to understand the legal complexities affecting those who, on both sides of the UK border, have relied on free movement in making their life choices. The book suggests adopting a conceptually solid approach so as to disentangle the various aspects of the question because, no matter its shape, Brexit will need to imply changing the territorial scope of application of the EU Treatises.” This will bring changes to citizenship, that is, the ‘personal sphere of validity of the legal order’ (Kelsen 1945). The citizenry is expected to shrink in size and change in composition, and some parts of it will be left in potentially vulnerable positions.

1 INTRODUCTION 3

The study presented here looks at what extra-negotiational legal resources are available for freezing rights of the people involved. Can rights be frozen? Which rights? Whose rights? Under what conditions? For how long? Sources of international law and EU law, including guidelines from lesser-known sources and doctrinal instruments, are taken into consideration. The conclusion is that some rights of some of the people involved will be frozen, but that the legal grounds for doing so suggests that Union citizenship is not what the European Court of Justice and most scholars claim it is.

Sources of international and EU law also help us answer the following question: Who gets to withdraw Union citizenship? It is a complex and debated issue. The various options are presented, discussed and the consequences of loss of Union citizenship are fleshed out, as well as the anticipated consequences for both the UK and for EU member states. Different venues for challenging the loss of status are also presented and discussed, as well as the options available for the EU to ‘save’ its status. Once the allocation of competence to withdraw European citizenship is established, we move on to looking at what limits there are to what the UK can do to protect itself against abuse of multiple citizenships and what member states are allowed to do to UK citizens resident in their territories.

The book is structured in seven chapters, including the present introduction. Chapter 2 presents the status of European citizenship and connected rights. Chapter 3 narrates the problem of legal uncertainty afflicting second country nationals in the UK and British citizens turning from expats to post-European third country nationals. The reader who feels comfortable in mastering the legal complexities affecting those who have relied on free movement in making their life choices can move on to the next chapter. Chapter 4 starts by explaining why a theoretically informed inquiry is needed and then moves on to describe the theory. It also delineates three ways in which it applies to Brexit. These three directions of inquiry are developed in the remaining part of the book. Chapter 5 focuses on the intension of Union citizenship: Which rights can be frozen? Chapter 6 determines the extension of Union citizenship: Who gets to withdraw the status? The key finding is that while member states are in principle free to revoke the status of Union citizen, former member states are not unbounded in stripping Union citizens of their acquired territorial rights. In the final chapter (Chapter 7) some conclusions as to the nature of Union citizenship are drawn, and policy suggestions concerning how to regulate matters pertaining to nationality and EU citizenship are summed up. The study offers performative evidence of the policy relevance of the general theory of citizenship that is sketched out in Chapter 4.

Acknowledgements are also due. A first draft was presented at the EUI Law Department in Fiesole, Florence in September 2016 and a second draft was presented at Uppsala Law Department Higher Seminar Series in Constitutional Law. I am grateful to comments and feedback received by Nehal Bhuta, Anna Cornell Jonsson, Marise Cremona, Fabrizio Esposito, Oliver Garner, Gabor Halmai, Hans-W. Micklitz, Sebastian Reyes Molina, Martin Scheinin, Marinius Jacobus Van der Brink and the other participants in the seminars, as well as the blind referees at Palgrave Macmillan. A special thanks goes to Mathilde Cohen and Marco Goldoni for their constant encouragement and comments on early drafts. The research presented here was conducted under the auspices of two research projects: The project entitled Arbitrary Law-Making (412-2012-725) sponsored by the Swedish Research Council and the project entitled Civis Sum that I direct as Wallenberg Academy Fellow (2015-2020) sponsored by the KAW Foundation. For those interested in our project, there is a website at civissum.eu. I wish to acknowledge the generous research support received from the Swedish Research Council, Knut and Alice Wallenberg Foundation and Uppsala University. This book, as much else, would not have seen the light had it not been for the enduring support of my family. A long summer by the sea provided the ideal setting.

It is dedicated to my favourite European citizen, Livia.

l. See in general the 2016 debates on https: //ukconstitutionallaw.org. 2. Articles 52 TEU and 355 TFEU which establishes the territorial scope of application of the Treaties, merely list each Member state eo nomine.

Cuono, M. (ed.) (2015) ‘Cittadinanza. Un dibattito a pit voci’, in Material per una cultura giuridica, 2.

Kelsen, H. (1945) General Theory of Law and State, Cambridge, MA: Harvard University Press.

1 INTRODUCTION 5

Mindus, P. (2014) [2014a] ‘Dimensions of Citizenship’, 15 German Law Journal (5), available at https://staticl squarespace.com/static/56330ad3e4b0733dcc0c 8495 /t/56b10a23c2ea5 1dd0e80a723/1454443052623/GLJ_Vol_15_No_05. pdf (last accessed 30 October 2016).

Mindus, P. (2014) [2014b] Cittadini e no. Forme e funzioni dellinclusione e delVesclusione, Florence: Firenze University Press.

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Chapter 2

Abstract This chapter gives a swift overview of the workings and principal rights associated with European citizenship. Some insight into the historical evolution of the status is offered. The major entitlements are explained as well as important case-law. The aim is to provide an outline of the essentials of European citizenship for the purpose of understanding the arguments made in this book.

Keywords European citizenship - Brexit - United Kingdom - Freedom of movement - Right of residence - EU law - EU citizens’ rights

The status of European citizenship was introduced in European law with the Maastricht Treaty in 1992. Let us see what steps were taken to establish this particular form of status civitatis that differs from the standard legal form of citizenship that we are used to consider equivalent to nationality. It is additional to having member state nationality. It entails a series of rights that nationals of member states would not enjoy if they were not European citizens. This confers a degree of independence to the content of the status. It is not, however, an autonomous status. Yet, member states are not fully autonomous in exercising discretion over who gets access to the status. This overview shows what makes European citizenship a status sui generis that is not constituted in the same way as nationality in unitary states or dual citizenship commonly found in federal systems. The aim of this chapter is

© The Author(s) 2017 7 P. Mindus, European Citizenship after Brexit, Palgrave Studies in European Union Politics, DOI 10.1007/978-3-319-51774-2_2 not to present European citizenship in an exhaustive manner but to shed light on some key aspects of the status that are important for the arguments made in the book.

2.1 EU CITIZENSHIP: A BRIEF HISTORY

21.1 The Background

The first practical steps towards EU citizenship were taken in the 1970s (Maas 2007). Following the Paris Summit in October 1972, it was suggested that a European identity would be needed to deepen integration. More precisely, for the committee chairman, Xavier Ortoli, the lack of a European identity was one of the weaknesses of the European Community.’ Following the summits in Copenhagen in 1973 and in Paris the following year, the issue of integration became more pressing. At the Copenhagen summit a document on European identity was drafted, in which, mostly in general terms, emphasis was laid on common cultural heritage. The political aim of strengthening integration between member states started taking shape during the next summit in Paris. It was suggested that the involvement in the integration process of the citizens of the member states could enhance a future European identity. From here came the idea of having a common status civitatis.

To be precise, at least since the 1960s, the idea of a European citizenship had been proposed on different occasions, albeit in a rather indefinite manner. For example, the vice president of the Commission Lionello Levi Sandri had argued for prioritising the free movement of persons over the free movement of goods as it would be a first step towards European citizenship. It was only in the course of the 1970s, in particular in the wake of the Paris Summit, that deepened integration started being spelled out in terms of citizenship. It resulted in the 1974 report on special rights by the Belgian Leo Tindemans. In this report it was recommended that certain rights should be attributed to the ‘ressortissants’ of the member states, that is, their nationals. They included the right to vote and stand in elections for the European Parliament and the establishment of a European passport, which would lead to the so-called passport policy.” This report, however, did not claim the rights in question to be of European citizens, but to be necessary for a ‘Europe of citizens.’* Tindemans handed in the report on the 29th of December 1975 and the Commission started to look into the so-called question of special rights.*

Nevertheless, with the protection of special rights, a legal problem arose, given that European citizens would enjoy rights both in their state of origin and in their state of residence. European citizens, in other words, would not be subjected to the principle of naturalisation, then commonly applied, according to which one would lose one’s original citizenship in case of naturalisation abroad. According to the Commission, in fact, there was a risk of reversed discrimination that would have resulted in EU citizens being more protected than the citizens of the host state. The result, unsurprisingly, was that the special rights policy had a rather limited impact.

Tindemans’ ideas were later revived by the European Parliament that presented a series of resolutions on European integration, considering the possibility of ascribing special rights to citizens of member states. Mario Scelba presented a report entitled Granting special rights to the citizenship of the community before the Parliament in Strasbourg on the 16th of November 1977. Many practical implications were put on hold. Yet, universal suffrage was introduced in the election of the European Parliament in 1979, putting into a new light the phenomenon for which David Marquand coined the famous expression ‘democratic deficit’ (Marquand 1979). It was held that the institution of universal suffrage constituted an embryonic form of citizenship.

The still rather imprecise idea of European citizenship came to the fore again in February 1984, when, in preparation of the Fontainebleau intergovernmental conference, the European Parliament presented a draft Treaty on the European Union, in which explicit mention of European citizenship was made in terms similar to those later adopted. During the Fontainebleau summit on the 25th and 26th of June 1984, two committees were established: the ad hoc committee on ‘The Europe of Citizens’ directed by Pietro Adonnino and another committee on ‘Institutional Affairs’ directed by James Dooge. The Adonnino Committee drafted two reports that focused on the objectives to be achieved respectively in the short and in the long run. They were presented to the European Council in Brussels in March 1985 and in Milan in June of the same year. The Adonnino report left no great signs on the Single European Act, an amending treaty signed in Luxembourg on the 17th of February 1986. Its preamble only makes a vague reference to European citizenship (Sébastien 1993).

It was only later, at the summit in Madrid on the 25th and 26th of June 1989, that the political will to introduce European citizenship became tangible. The heads of state gathered in the Spanish capital stressed how the European Community had failed to realise ‘the Europe of citizens.’ Following the Martin report from February 1990, the European Parliament called for a specific formulation of rights of European citizenship to be included in the future Treaty of Maastricht. A memorandum was written by the Belgian Foreign Minister Eysken suggesting the adoption of a uniform electoral procedure for the election of the European Parliament, in addition to the right to vote in local elections for all EU citizens. Nevertheless, it was first and foremost Spain that pushed in the direction of adopting the new status civitatis at Maastricht.

In a letter to the President of the European Council, dated the 4th of May 1990, the Spanish Prime Minister Felipe Gonzalez suggested instituting a form of supranational citizenship as a step towards a future political union. According to this scenario, nationals of member states resident in other states than the one of which they hold nationality should not be cast as privileged foreigners. Rather, they had to be granted rights that were classified as ‘special basic rights, ‘new dynamic rights’ and ‘protective rights.’ Leaving aside the merit of classification that, to some extent is reminiscent of that of T.H. Marshall (1950) then very much en vogue, it is interesting to note that the first category included the right to freedom of movement, freedom of residence, participation in political life in the place of residence, while social, environmental and cultural rights were listed under ‘new rights’ and the third category included the protection of the soon-to-be-instituted European citizens outside the Community. The Spanish memorandum came to play an important role in legal translation of these ideas into what we find in the Maastricht Treaty.

Shortly before the approval of the Treaty, at the special meeting of the European Council in Rome on the 27th and 28th of October 1990, a document was presented, in which European citizenship was understood to complement national citizenship, as a status attributed to those who already have the nationality of a member state. Following a new Spanish proposal from the 21st of February 1991, the idea began to circulate that defining the new status of European citizenship ought to be done by inserting a new title in the Treaty that the member states were now entering into. Issues relating to citizenship would, therefore, become a European policy. The political will to institute this new status civitatis was undeniably present at the time, but it was not until the Maastricht Treaty in 1992 that it was expressed in a legally binding text.

The Treaty establishing the European Community, better known as the Maastricht Treaty, ascribes a series of rights to citizens of the member states in the second part relating to citizenship: Articles. 18-21 TEC.” These establish, first of all, the right to free movement within the Union (Article 18 TEC; now TFEU Article 21), the right to vote and stand in elections both at the local and at the European level at the same conditions as first country nationals (Article 19 TEC; now TFEU Article 22). The Treaty also provides for the right to consular protection by member states in a third country where the right-holder’s home state is not represented (Article 20 TEC; now TFEU Article 23), as well as the right to petition the European Parliament and to appeal the European ombudsman in cases of maladministration (Article 21 TEC; now TFEU Article 24). The final provisions of Article 22 TEC (now TFEU Article 25) provide that provisions may be adopted to strengthen or to add the rights laid down. It is thus an open list, a fact that is confirmed by other aspects too.

In fact, the rights listed in the second part of the Maastricht Treaty are not exhaustive of the status of the European citizen. This is not merely because of subsequent regulatory actions and later treatises, such as the Amsterdam Treaty, the Charter of Fundamental Rights of Nice or the Lisbon Treaty that have indeed added rights. It is so also because a series of legal positions have been ascribed to the European citizen in the case-law of the European Court of Justice. European citizens do not only have the rights listed under the heading relating to European citizenship in the treatises. These rights are also determined by case-law and by secondary legislation, that is, the legal acts, listed in Article 288 TFEU, including regulations, directives, decisions, recommendations and opinions.

2.1.2 A Farewell to Traditional International Law

European citizenship differs both from nationality in unitary states and from dual citizenship commonly found in federal systems (See, e.g. Bar- Yaacov 1961; Garot 1999; Hansen 2002; a comparison in Schönberger 2005). There are some structural reasons why.

Much emphasis was laid on the fact that, originally, the recognition of the individual’s legal status in Community law did not differ from the legal status of subjects under international law (Jacobs 1976; Janis 1984; Nascimbene 1986; Lippolis 1994; Trevisani 1995; Cordini 2003). European law, however, broke with the tradition of international law, a matter which did not fail to impact on the legal status of individuals. The rules adopted by the Union are directly applicable to individuals and individuals may use, in some cases without reference to the state organs, the Court of Justice and the Court of First Instance. Rights can be claimed by the individual, not only against EU and member state institutions, but also against private persons and bodies.°

European law differs from international law in allowing direct individual access to the justice system. This fact provides some insight into what was considered to be the very point of introducing European citizenship: In the ‘common provisions’ in Title I, the parties to the Treaty are ‘resolved to create a citizenship common to the nationals of their countries’ and ‘to strengthen rights of the nationals of their member states through the introduction of a citizenship of the Union.’ The provision of rights is therefore a central aspect of European citizenship.

There are also other features of European citizenship that sets it apart from traditional constructs. There are reasons inherent to the very structure of the EU, and reasons inherent to the development of the case-law by the European Court of Justice:

First, the different legal positions associated with Union citizenship have a common principle: freedom from discrimination on grounds of nationality. In European law, nationality is not considered a relevant criterion for ascribing to individuals different legal positions, other things being equal, whereas differential treatment on grounds of nationality is a core feature of international law. In the second part of the consolidated versions of the Treaty on the Functioning of the European Union (TFEU), under the title ‘Non-discrimination and Citizenship of the Union,’ this principle is defined in the following terms: ‘Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited’ Article 18 TFEU (ex Article 12 TEC).

This is an atypical principle in this context. Traditionally, differential treatment on the grounds of nationality is precisely what status civitatis enables. The point of making the distinction between nationals and non-nationals is to allow differential treatment. Citizenship, or status civitatis to use the legal term of art, is a status that is recognised only by those having some privileged relationship with the community. Originally this relationship was conceived as a relationship of perpetual allegiance linking a territory’s subjects to their ruler (Vanel 1951, p. 21) but, over the centuries, it came to be understood in national terms,’ even though formally the introduction of the principle of nationality in international law occurs rather late. Over the last couple of centuries — and with significant difficulties in colonial settings — the prevailing idea was that differential treatment on grounds of nationality did not equate to discrimination. To the contrary, nationality was admittedly considered to offer justification, or good reason, to treat individuals differently. It is on this backdrop that the right to non-discrimination in European law can be said to stand in discontinuity with this traditional assumption that most forms of status civitatis rely on.

Second, the case-law that the European Court of Justice has developed on matters relating to citizenship departed in significant ways from the standard elaborated in international law. In European law, formal recognition of the status trumps the so-called effectiveness principle which otherwise rules international law. Under international law, in particular with reference to Article 5 of the Hague Convention from 12th April 1930,” the principle of effectiveness applies to the resolution of questions of citizenship (See, e.g. Quadri 1936; Bastide 1956; Glazer 1956; Maury 1958; Weis 1979; Carrera Nunez and De Groot 2015). In the event of contested citizenship due to multiple nationalities, residence ought to be guiding in order to identify the legal regime that applies to the individual. This is done by verifying the person’s so-called habitual residence. The principle of effectiveness was reiterated, and took on this form, following the famous Nottebohm ruling from 1955 by the International Court of Justice. Here is a summary of the famous case:

Friedrich Nottebohm was born in 1881 in Hamburg as a German citizen. In 1905, he emigrated to Guatemala, where he successfully ran his business. He maintained close ties both professionally and personally, with Germany and Liechtenstein, where his brother moved in 1931. Several family members naturalised in Guatemala, but Friedrich Nottebohm, fearing that Guatemalan citizenship would harm his business, moved to Liechtenstein in 1939 and applied for naturalisation. Here he obtained naturalisation ex iure pecuniae a month after the outbreak of war; a conflict that he would witness from a safe distance, that is from Guatemala. Being a German, he was arrested by US order in October 1943 and deported to the USA, where, without a trial, he was held for two years and three months while his belongings were confiscated and sold in Guatemala. After a series of appeals in Guatemalan courts, Nottebohm was able to obtain the diplomatic protection of Liechtenstein. In 1951, Liechtenstein presented an appeal before the international court of justice.

l4 EUROPEAN CITIZENSHIP AFTER BREXIT

At the outset, it was necessary to determine whether Liechtenstein could grant its diplomatic protection to Nottebohm. In denying the existence of a legally significant bond with Liechtenstein, the Court, in line with already mentioned Hague Convention, gave a definition of citizenship based on the principle of effectiveness: ‘nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence.’ This definition is the one currently adopted in international law and it is known as the doctrine of genuine link.

It is this doctrine that the European Court of Justice distances itself from in establishing its case-law on Union citizenship. Its case-law departed from the principle of effectiveness with the Micheletti ruling.” Here are the facts of the case: This ruling concerned Mario Vicente Micheletti, an Argentine dentist holding an Italian passport ex iure sanguinis who was refused a permanent residence card from the delegacion del gobierno of Cantabria in Spain in March 1990. The appeal was presented before the Tribunal Superior de Justicia in the same Spanish region, requiring the administrative decision to be cancelled, in addition to the recognition of his right to obtain the residence card, a conditio sine qua non for the exercise of the profession, and to request, for other family members, the issuance of the residence certificate. In a preliminary ruling procedure, the Spanish court raised the issue of a conflict between Community law and Article 9 of the Spanish Civil Code, under which — and in accordance with international law — in cases of multiple nationality, the citizenship that prevails is that of state in which the person had her former habitual residence before arrival on Spanish territory; in this case, Argentina. However, the judges in Luxembourg considered that the provisions of Community law precluded a member state from refusing to grant the benefit of ‘community rights’ to an individual in possession of both the nationality of a member state and that of a third country, on the sole basis that the member state did not recognise the person to be a second country national, that is, a person having the nationality of another member state.

Basically, under EU law, a member state may not decide who are to be considered as nationals of another member state and therefore no additional criteria can be added to assess citizenship, such as the genuine link doctrine: Merely having the nationality of a member state is sufficient to be recognised by the European legal system as a second country national (See, e.g. Borras Rodriguez 1993; Iglesias Buhigues 1993; Jessurun d’Oliveira 1993; Ruzié 1993; Carrascosa 1994).

Apart from the reasons mentioned, inherent to the structure of the EU and to the development of the case-law of the European Court of Justice, there is yet another reason for differentiating between European citizenship and common forms of status civitatis. It pertains to how the status was introduced into EU law. Indeed, at Maastricht, when the Treaty on the European Community was signed, a choice had been made about how to design the access gate to this new citizenship. The designers shaped the access gate so as to make European citizenship a derivative status. In a nutshell, there are 28 ways to access the status.

2.2 THE DERIVATIVE CHARACTER OF UNION CITIZENSHIP

European citizenship is a status that has a very specific character: It is derivative. A person gains access to the status by already having access to another status: that of national of a member state for the purposes of EU law. The Article 20 TFEU (ex Article 17 TEC) provides the following: ‘Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’ This position was reiterated by the Declaration no 2 that was annexed to the Treaty of Maastricht on nationality of a member state, according to which ‘the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned.’ So member states retain the competence to define criteria for acquisition and loss of their own nationality. Nationality of a member state is therefore a necessary criterion for the acquisition of European citizenship. This derivative nature of EU citizenship confers upon it the quality of a complementary status, different from dual citizenship status common in federal states.