A true European citizenship?

The EU should act to prevent mass loss of European citizenship among British citizens, and to prevent such a situation in future, by creating an EU citizenship independent of national citizenship.

 © User:Colin / Wikimedia Commons

As the threat of a hard Brexit looms, many British nationals living in the EU fear for their rights and status. Personally, I have been working in Belgium since January as a British citizen myself. Removal of our EU citizenship rights would mean that, among other things, we lose our right to work without a permit. Belgium will guarantee our rights until the 31 December 2020, but ‘no decision has been taken yet’ on what happens afterwards. Imagine trying to make future plans with that in mind. Imagine being used as a bargaining chip. Then, imagine that nobody was willing to reform EU citizenship to save you and others from a similar fate.

Looking at the existing citizenship laws, the Treaty on the Functioning of the European Union‘s (TFEU’s) Article 20 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.” It goes on to detail the rights that accompany this EU citizenship. The Charter of Fundamental Rights also sets out citizens’ rights.

Neither document deals with the possibility of losing EU citizenship.  They establish it as a condition linked to Member State citizenship, and it might be assumed that it can only be lost when Member State citizenship is lost. For example, an Italian who becomes Japanese and must give up their Italian citizenship also gives up their EU citizenship. Other ways to lose citizenship are involuntary, including living abroad for an extended period, obtaining another citizenship, serving  in the military of a foreign country, treason,  fraudulent application for citizenship or conducting terrorist activities.

However, it is currently possible to lose your EU citizenship without losing your Member State citizenship. This is the situation that 65 million British people face, due to the result of the Brexit referendum. Although attempts have been made to protect their rights, they will be less comprehensive than maintaining EU citizenship. The New Europeans (a citizens’ rights platform) has a Green Card proposal, which could provide third country nationals who are EU permanent residents with similar rights to EU nationals.

This is a great contribution to this policy field, but does not completely resolve the problem. Although permanent residents would maintain their freedom of movement and right to work within the EU, those who have not yet lived in their host country for 5 years would still be deprived of those rights. If a British person moves to Spain for a year, then studies in France for 2 years and finds a job in Belgium, only the time they have worked in Belgium counts towards residency. They may have lived in the EU for 3 years already, but EU citizens’ rights are linked to a particular Member State.

As such, more radical solutions would be needed in order to protect the rights of British people who have been exercising their freedom of movement for less than 5 years in a particular Member State. “British in Europe”,  an organisation of British immigrants to the EU, made an impassioned plea to both sides of the negotiation to ring-fence the rights of UK citizens in the EU and of EU citizens in the UK, so they would be protected come what may. This call was echoed by the European Citizens’ rights, Involvement and Trust (ECIT) Foundation: proposing to guarantee the existing rights of UK citizens in the EU and allow them all to remain long enough to qualify for permanent residence.

There have also been judicial activism attempts on this matter, notably an attempt to obtain a ruling interpreting Article 20 TFEU from the European Court of Justice as to whether British citizens automatically lose their EU citizenship as a result of Brexit. This was initially referred to the ECJ but then overturned on appeal. Another attempt to obtain such a ruling was also rejected by the Dutch courts.

The closest available answer to this question comes from a study requested by the European Parliament’s Committee on Constitutional Affairs. ‘Acquired rights of individuals’ is a legal concept referring to rights that people have been given by the law and which persist through changes of the legal system. However, it concludes that there are no ‘acquired rights’ in relation to EU citizens’ rights and the four freedoms of the single market.

It is hard to blame one of the complainants of the second case above for, in a comment on the ruling against an ECJ referral, questioning “whether being a European has meant anything for the past 40 years. Maybe it hasn’t.” Although ring-fencing citizens’ rights would protect the rights of those currently affected, it would not resolve the question of what European citizenship really means, nor would it protect the rights of any current EU citizens whose Member State made the (unlikely) decision to follow in Britain’s footsteps.

Associate citizenship would have provided an opt-in form of EU citizenship, in which UK citizens would pay into the EU budget in exchange for maintaining their current status. Guy Verhofstadt MEP and some British civil society actors have looked favourably on this proposal. However, it is both legally and politically complex: possibly requiring treaty change and allowing UK citizens to possess an additional citizenship which is not subordinated to or controllable by the UK state authorities.

Similarly, a European Citizens’ Initiative calling for Permanent European Union Citizenship was declared admissible by the Commission. It did not succeed in gathering sufficient support, but sought to get the Commission to propose a way to avoid citizens losing their EU citizenship as a result of their Member State leaving, and to turn EU citizenship into a permanent acquired right. Decoupling EU citizenship from Member State citizenship would also solve the issue of building up residency time while moving around Member States. To revisit the example above, those 3 years could count and the person would be well on their way to permanent residence.

Admissibility is a recognition that the Commission has the power to act on a particular issue. The legal and political detail would be complex to agree on, but the EU has traditionally been forced to grow and change by unforeseen crises.

The moral case for taking this opportunity to reform is obvious and compelling. Being a European has to mean something in order for the European project to progress. In order to truly provide the people of the EU with a meaningful form of citizenship, it must not be arbitrarily and collectively removable as a result of a political choice by their Member State. For many of them, it is a birthright. It should be respected and protected as such.