The question raised here is something that raises a smile each time I see or hear it. That is not because anything is funny but more a case of my own academic history catching up with me. As a social scientist, my research was originally and for some years on the topic of migration. Through that I moved into other areas that are my main concern now, but on the way there and consistently since I arrived at citizenship. I have, therefore, examined them contextually with regard to children who have been the main focus of my work, but that demands also knowing those topics for all ages and across a good number of nations, in terms of international and national legislation and treaties, including many rules, regulations and exceptions thereof.
Therefore I shall start by looking at citizenship. The Maastricht Treaty (formally, the Treaty on European Union) 1991 introduced the concept of citizenship of the EU in Article 17 (1) of the treaty that states: ‘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.’ However it is a deception because it appears to give something that is not actually possible to give. In simple terms, in most countries all nationals become citizens of the state in which the are entitled to be citizens by birthright, naturalisation, marriage and perhaps one or two other routes, thus full citizens are always nationals of that state. Nationality is the legal relationship between a person and the state they were born in, which thus gives that state jurisdiction over the individual and affords them the protection of the state, although the exact nature of these rights and duties vary from one state to another. One actually becomes a (full) citizen by reaching the age of majority and having full political and legal franchise. So, one is a national and can become a citizen if their parents are citizens (jus sanguinis), they are born within a country (jus soli) where people are automatically citizens of the state in which they are born, through marriage to a citizen (jure matrimonii) in many countries or naturalisation whereby states can grant citizenship to people who entered that country legally and were granted permission to stay. There are also exceptions and exclusions plus, of course, statelessness, however none of those are particularly relevant here. So, there we have the definitions. One of the main clues to the opening question is contained in them. That is simply regarding the dilemma of seeking citizenship without nationality preceding it. There is no such thing as EU nationality, only of member states of the union.
Moreover, the Lisbon Treaty does not allow for any kind of citizenship, whether associated or in any other form, for nationals of countries that do not belong to the EU. Furthermore, the bloc’s de facto constitution states that EU citizenship ‘shall be additional to and not replace national citizenship’, therefore to obtain EU citizenship a person must ‘[hold] the nationality of a Member State….’. At present there are neither existing plans to change the treaty nor mechanisms by which exceptions could be made. It would almost certainly take far longer to negotiate and legislate, assuming it passed through, than Brexit negotiations. It would also absolutely need to be reciprocal, thus offering EU nationals in the UK a comparable status and without making such arrangements by using people as bargaining chips. It should also be borne in mind that during 2014, the European Parliament voted against schemes that would have enabled non-EU nationals to ‘purchase’ residency rights in EU member states. At that time MEPs said: “EU citizenship implies the holding of a stake in the Union and depends on a person’s ties with Europe and the Member States or on personal ties with EU citizens.”
Citizen of Europe?
There is a school of legal thought that takes the view that the Maastricht treaty created the EU as a legal entity. It then also created the status of EU citizen which gave individuals a relationship between the EU and its citizens although it does not have a direct legal relationship with its citizens, thus EU citizenship is not comparable with any other version of citizenship also is not additional to member state nationality. The relationship between an EU citizen and the EU as an organisation is therefore only legally through the member state. In this situation, when a member country leaves, that former member country no longer offers that special feature to its citizens, therefore British citizens can no longer be EU citizens. With regard to the rights deriving from EU citizenship, some scholars have argued that on the basis of its creation by Maastricht it can stand alone, standing apart from the nationality of a member state, so that the nationals of the state in question would keep their union citizenship even after withdrawal from the EU. This reasoning is based on the assumption that nationals of a withdrawing state would lose their EU citizenship involuntarily in the case of leaving. Clemens Rieder (2013: 157) suggests a case can be made that ‘[n]one of the Member States were forced to confer the status of EU citizenship on their citizens but once they have, according to this argument, they cannot simply withdraw this status.’ The majority of legal experts tend to disagree. The matter is an open question pending definitive resolution.
The principles of EU citizenship have been taken to the European Court of Justice (ECJ) thus influencing their development over time. Craig and De Burca (2011: 853) say that; ‘The ECJ’s rulings on EU Citizenship have been important in several ways’ and has thus established that the treaty provisions on citizenship construct distinct autonomous rights independent of other provisions that regulate the movement of individuals, furthermore that ‘The ECJ has linked the provisions on citizenship with the prohibition on discrimination on grounds of nationality in a way which has strengthened the rights and entitlement of EU nationals and their families – both in host Member States and in their own – on matters such as social benefit, taxation criminal procedures and dual nationality situations’. Chalmers, Davies and Monti (2010: 446) say: ‘National citizenship may still exist, but it confers very few special rights. It is, therefore diminished and constrained’. Owing to the introduction of citizenship of the EU, member states are no longer free to exclude others and the ability to discriminate is now limited within them to such things as national elections and particular occupations, often such as senior military ranks, security services and senior political offices of state. Thus, EU citizenship bestows another equalising status on nationals of member states as though nationality did not override all other principles. The case of Martinez Sala v Freistaat Bayern was, for instance, the first time the extent to which non-economically active individuals could claim social advantages in a member state in order to claim equal treatment in respect of social advantages under Article 21(1) of the Treaty on the Functioning of the European Union (TFEU) 2007. Maria Sala is a Spanish national who lived in Germany since age 12. During 1993 German authorities rejected her application for a standard child support allowance on the grounds that she was not a German national, furthermore did not have a residency permit. The ECJ examined the case with through the points of view of non-discrimination and citizenship. They found that a national of a member state lawfully residing in the territory of another fell within the personal scope of citizenship provisions. Therefore the rights laid down by Article 20(2) of the TFEU were applicable to the situation, including the right not to be discriminated against on the grounds of nationality as stated in Article 18.
All good and fine, but as yet nobody has tried or tested what happens when a member state withdraws from the EU. Does that kind of use of the treaties end there? Since there is no precedent there is no model to base the notion of any manner of ‘associate citizenship’ on. The TFEU offers no clues. It may in time be a case taken to the ECJ but one that lacks the one element, there is no such thing as EU nationality per se.
Charles Goerens, one of Luxembourg’s Liberal MEPs and member of the Alliance of Liberals and Democrats for Europe (ALDE), proposed amendment 882 to a draft report by the parliament’s constitutional affairs committee on possible changes to ‘the current institutional set-up’ of the EU (Verhofstadt, 2016). That was picked up and developed on by the report’s author Guy Verhofstadt, a former Belgian prime minister and leader of the ALDE group in the European Parliament who is the European parliament’s representative on Brexit, early in December when he promised to ensure that associate citizenship for Britons ‘was on the table’ during the UK’s exit negotiations. Introducing citizenship rights for a non-EU country requires extensive and complicated changes to European treaties, which is a demanding legal undertaking no member state seems enthusiastic about embarking on. Anyway, idea would need to win the unanimous support of the other 27 EU countries which ultimately control the Brexit process. Jean De Ruyt, a former Belgian ambassador to the EU, said it had had no chance of being supported by any of the 27 governments. The idea has been adopted by disconsolate UK supporters of remaining in the EU, but condemned as ‘discriminatory’, ‘unfair’, ‘sinister’ and ‘an outrage’ by hardcore EU pro-leavers. There have been reports that Theresa May supports the idea. However, it has been described as very unlikely to happen by constitutional experts. Guy Verhofstadt has apparently dropped the idea.
When a migrant is not a migrant
So where does that place UK nationals who do not wish to lose their EU ‘citizenship’? A soft compromise is to apply for a long term or permanent residency permit. They still lose their EU citizenship. The other is naturalisation. Depending on where one takes on another citizenship, they may or may not be entitled to keep their birth nationality, thus be dual nationals. They then at least keep their EU citizenship. At present there are no other options.
This is where migration enters this topic. If the UK leaves the EU and freedom of movement is ended between the EU and UK, then the status of EU citizens in the UK and UK nationals throughout the EU changes. The people become migrants. Strictly speaking they should be referred to as emigrants, those who have left their place of origin or previous permanent country of residence, and immigrants, those who have gone into a country other than their own with the intent to stay permanently. For some reason, many UK nationals stay shy of the two expressions, preferring to be known as ‘expats’. An expatriate is a person temporarily or permanently residing, as an immigrant, in a country other than that of their nationality or previous residence. So the difference is almost semantic, yet great importance has been attached to being expats rather than immigrants. It is a relic of an attitude hanging over from the colonial past when people sent to far off lands to serve their country in one sense or another, be that as a diplomat, administrator, trader or other reasons were never seen as emigrants or immigrants, even if they were destined to spend the rest of their lives in that place. They remained somehow totally British, even a lifetime was treated as a temporary stay and home was always the UK under any circumstances. They were always one of ‘us’ but never ‘them’, therefore they were expatriate; ex (out of) and patria ([the] fatherland). Expats and migrants by some tacit rule are different. However, the truth is that immigrants are what they are and will always be when they are in another country, as too are the people who have gone to live in the UK.
At present, the tendency appears to be toward people who have moved in either direction being used as bargaining chips, thus causing uncertainty and a kind of potential paralysis. Although this would not really be significant until Article 50 is invoked and negotiations complete, thus a settlement reached and the UK out of the EU, with the possibility of further lengthy post-Brexit negotiations before anybody’s status is ascertained, there is an atmosphere of general nervousness. In some case it has motivated people to act, as, for instance, the launch and activities of the 3 Million support and pressure group for EU citizens living in the UK and various other groups in a number of permutations for UK citizens alone, for both EU and UK citizens or those supporting EU citizens. They are, needless to say, a minority of any such group but working on behalf of the majority without any discrimination between activist, supporters and non-participants.
This where the two basic tenets of what I am examining meet, instead of being citizens of the EU, people will become emigrants or immigrants, depending on in which direction one looks at their situation. As immigrants they are weakest with their home countries not yet engaging wholeheartedly in supporting them as emigrants. Of course, one of the oddest things when it is considered is that all EU people allowed to stay in the UK who do not become naturalised and also those who do but do not (have to) give up their original nationality will remain EU citizens. The UK citizens remaining in the EU will lose it. In both cases it will be a case of those people settling permanently where they have gone, yet achieving almost the diametric opposite of each others’ citizenship rights. In effect the UK people will be disenfranchised since they will be without political and many civic social rights in their chosen country and possible further disowned by the UK through potentially punitive measures such as the freezing of pensions and an absolute cut off from entitlement to free treatment by NHS services – especially if privatisation does go ahead as many of us expect. Something needs to be done, that much is known, but thus far such ideas as associate citizenship have been red herrings that are probably leading us away from an easier solution. Perhaps, given the change of attitude toward the possibility of the ‘hard Brexit’ option making life untenable for people who simply wanted out of the EU for a number of absolutely spurious reasons, sense will win through and EU citizenship be retained by not leaving the union. At the very least this will have been a very important experience for EU legislators who most seriously and urgently need to act to put a mechanism in place so that this will not become such a destructive scenario that may ever be repeated.
Open to debate
To summarise and conclude, there is no common EU policy on the acquisition of citizenship because it is supplementary to nationality: generally granted at the same time as nationality, correspondingly it ends when the country that conveys that status to its nationals is no longer in the EU. Article 20 (1) of the TFEU states that: ‘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.’ EU citizenship is clearly supplementary to national citizenship, extending particular rights and privileges to member state nationals that are generally shared throughout the union. The assumed and untested general rule for losing EU citizenship is that it is forfeit if a member state nationality is no longer in the union, nonetheless the automatic loss of EU citizenship as a result of the withdrawal of a member state from the EU, thus involuntarily individuals, is still the subject of debate. That debate is in the hands of lawyers, bureaucrats and politicians; citizens have two choices – sit on their hands or act decisively to attempt to keep their rights. For those who make the latter choice it is immediate, waiting to see is not an option that will improve their chances of persuading the UK to either remain in the EU or resolve a very sensitive issue amicably.
Chalmers, Damian, Gareth Davies and Giorgio Monti, 2010, European Union Law, Cambridge: Cambridge University Press.
Craig, Paul, and Gráinne De Burca, 2011, EU Law; Text, Cases and Materials, Oxford: Oxford University Press.
Rieder, Clemens M., 2013, ‘The Withdrawal Clause of the Lisbon Treaty in the Light of EU Citizenship (Between Disintegration and Integration)’ Fordham International Law Journal, Volume 37, Issue 1: 147-74.
Verhofstadt, Guy, 2016, Draft report – Possible evolutions of and adjustments to the current institutional set-up of the European Union, Brussels: European Parliament.