In the past few years the concept of citizenship has been a growing subject of studies in law and politics. The distinction between nationality and citizenship, the rights and duties of nationals and citizens, EU citizenship, etc have attracted considerable interest, the best proof being that two weeks ago the House of Lords Select Committee on Citizenship and Civic Engagement published a call for evidence. As part of the research undertaken by Dr Devyani Prabhat at the University of Bristol, Christian Dadomo and Dr Noëlle Quénivet were invited to present a paper on Brexit and EU citizenship at a Workshop on Citizenship and Law on 14 July 2017.
The workshop was divided into three sessions 1) theories of citizenship, processes and procedures, 2) case studies in citizenship law and practice and 3) citizenship and nationality legal practice. Christian Dadomo and Noëlle Quénivet shared their views on the impact of Brexit on the concept of EU citizenship in the first session at which Professor Jo Shaw and Professor Bernard Ryan also spoke.
Christian Dadomo and Noëlle Quénivet argued that increasingly, the concept of EU citizenship is being viewed as bridging the difference between nationality and citizenship. For those living outside their country of nationality, EU citizenship has become a fundamental status that guarantees not only their free movement and residence rights but above all their equal treatment with the nationals of their country of residence. In this context, status of and treatment as EU citizens are intrinsically intertwined.
Yet, with Brexit, it is submitted that this fundamental status is potentially jeopardised for all EU citizens in the UK and UK nationals in EU27. It was argued that Brexit might lead to a fragmented EU citizenship, creating a multiple categorisation of EU citizens, whereby status and treatment will no longer coincide. This assessment was based on the joint reading of the European Commission working paper ‘Essential Principles on Citizens’ Rights’ and the UK proposal ‘Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU’.
Fundamentally, the EU legal order has created a space in which EU citizens can live and enjoy life in the same way as in their own national legal setting. With the withdrawal of the UK that space will be broken and this could indeed result in EU citizens living in the UK to have fragmented EU rights in the UK while keeping their full rights in the EU27. Conversely UK nationals in the EU27 would lose their EU citizen status though potentially retaining some or all of their rights derived from it (depending on the outcome of the negotiations). On the other hand, UK nationals who have never exercised their free movement rights would lose their EU citizenship and all the rights attached to it and would thus be viewed as third-country nationals in the EU. In other words, EU citizens in the UK, UK nationals in the EU27 as well as UK nationals (in the UK) will have their status as EU citizens altered.
Therefore there will definitely be a fragmentation of the status and/or treatment of EU citizenship for those categories of citizens and of ‘the[ir] genuine enjoyment of the substance of rights conferred by virtue of their status as citizens of the Union’ (Zambrano). Along this line, Christian Dadomo and Noëlle Quénivet maintained that the principles of reciprocity, symmetry and non-discrimination must be the basis for a settlement of the status of EU citizens in the UK and UK nationals in the EU27.
The first question is whether status, ie EU citizen status, matters more than treatment, ie EU citizen like-status. For example, does it matter more for UK nationals currently exercising their rights in the EU to lose their EU citizenship or not to be discriminated against after Brexit as non-EU citizens in the work place? For EU citizens in the UK the stake is between keeping EU citizen status and treatment with reduced rights in the UK (eg no right to vote in local and in some instances EP elections) and being granted a new ‘settled EU citizens’ status with further reduced treatment (eg reduced family reunion rights). In a nutshell, it was contended that the EU proposal was the most favourable offer because it preserves the appearance of status of EU citizens in the UK and UK nationals in the EU27. In contrast, the UK proposal could be interpreted as exacerbating the fragmentation of EU citizens’ status and treatment not only by reducing the current rights of the EU citizens in the UK but also by realigning the equal treatment onto the less favourable one of UK citizens. Furthermore the UK proposal hardly considers the rights of UK nationals in the EU27.
The second question was whether there are long-term and viable alternatives. One often mentioned is that of acquiring a second nationality with the aim of securing both EU citizenship and British nationality. The problem is that some States do not allow dual nationality and thus those British nationals who want to keep their EU citizenship cannot do so and those EU nationals who want to secure their rights in the UK whilst retaining their EU citizenship might not either. Another, probably more academic, proposal is that of delinking EU citizenship from the country of nationality and would include a European Associate Citizenship or even a new European Citizenry.