From Expat to Post-European
No matter the shape, Brexit would impact significantly on the citizenship of the Union, in a particularly unhappy way for British nationals living in the Union. The citizenry is predicted to shrink in size, change in composition and some parts of it will be left in potentially vulnerable positions.
The Union citizenry has of course always been dynamic, not merely due to inherent demographical factors and enlargement but also due to modifications of member states’ nationality laws. To give examples pertinent to the UK, there was an artificial increase of the number of British nationals when the status was extended to include the inhabitants of the Falklands in 1983, the population of Hong Kong in 1997 and to some 200,000 citizens of British overseas territories in 2002 (De Groot 2004, p. 7).13 Brexit, however, constitutes a novelty: For the first time we are witnessing an automatic and collective lapse of status for Union citizens of exclusively British nationality.
Brexit is expected to cause an automatic en masse loss of European citizenship for individuals, residing on both sides of the border of the UK. Particularly vulnerable are those who have relied on free movement in making their life choices. Unsurprisingly, anecdotal evidence from Belgium has suggested large numbers of British residents there making applications for citizenship. The media has reported that across 18 European member states, some 2,800 Britons applied for citizenship in the first eight months of 2016, estimated to correspond to a more than 250% increase on numbers recorded in 2015.14
A non-negotiated Brexit would transform all Union citizens of exclusively British nationality in third country nationals (TCNs): They would lose rights associated with the status, including freedom of movement and residence,15 voting rights in municipal16 and European Parliament elections, consular protection by another EU country, right to adhere to European citizens’ initiatives (Art. 11 TEU & Art. 24 TFEU) as well as the principle that holds EU citizenship rights together, that is, the right to non-discrimination on grounds of nationality (Art. 18 TFEU) - viewed by some as the groundbreaking thrust of Union citizenship (Kostakopoulou 2008; Eleftheriadis 2012) and by others as a normatively suspect way of clinging to market citizenship (Somek 2011). Along with the status goes also jurisprudentially developed protections, such as the right to export benefits and entitlements tied to nationality in a host member state17 and the right not to be burdened, or discriminated for having exercised the freedom to move.18
Not all British citizens would lose rights associated with European citizenship whose personal scope is over-inclusive in respect of having the nationality in a member state. British citizens in the Union would retain these rights also as third country nationals. These rights are often called ‘citizens’ rights’ but they are really recognised to all residents: Such as the right to petition Parliament and the Ombudsman (Article 24) from the Maastricht Treaty, the right, introduced with the Nice Charter in 2000, to access documents from European Parliament, Council and Commission (Art. 42) and the right to good administration (Art. 41). Neither would UK nationals lose the right, introduced with the Treaty of Amsterdam in 1997, to address the EU in any official language and to receive a reply in that same language (Art. 24), since other member states use English as official language.
Moreover, the EU has partially harmonised immigration laws: Article 77 TFEU provides that the Union is competent to adopt rules relating to the absence of internal border controls, the management of external borders and short stay visa policy; Article 79 TFEU provides that the Union may adopt rules relating to the conditions of entry and residence, the definition of the rights of third country nationals residing legally, illegal immigration and unauthorised residence and combating human trafficking. Harmonisation in these areas means that the laws applicable to British citizens in the Union would be a mixture of common European standards and the residual domestic immigration laws of each of the member states. Basically, it entails increased scrutiny of British nationals at EU borders.
The Union could impose visa requirements, including for short-term trips and holidays, since the UK is not a party to the earlier treaty on Regulations governing the Movement of Persons between Member States of the Council of Europe from 1957 that abolished visa requirements between European states. Steve Peers, for one, argues that visas might be imposed on all EU travel after a Brexit (Peers 2016b). He has also argued that:
the EU would be free to impose visa requirements on UK citizens in the event of withdrawal. While the EU tends not to impose visa requirements on wealthy countries, it does expect such countries (such as the USA and Canada) in return to exempt all EU citizens from a visa. So if the UK wished to impose visas (for instance) on Romanians and Bulgarians, it would face pressure from the EU to waive such requirements - or face the imposition of a visa requirement for UK citizens (Peers 2016a).
Those who sought to reside for longer periods in the Union would be subject to the EU rules on immigration including quotas and EU- preference rules on labour migration. ‘The transition from freedom to restriction will be painful for many. There will be many cases that fall through the cracks, and vast amounts of insecurity and pain’ (Shaw 2016).
Consider, for example, Timothy who is a ballet dancer in Paris. Would he be granted a Blue Card to continue the profession or would he be considered self-employed subjected to the intricate French regulations? How about his flatmate Christopher who works as an assistant on a project at a local university: Does he now fall within the remit of the European Directive on third country national researchers?19 What happens to Margaret, who is one of the 106,610 claiming UK pension in Spain?20 She sold her house in Cambridgeshire and retired on the Costa Brava. Will the European rules that guarantee the upgrading of her British pension no longer apply? Sally, an unpaid trainee at a multinational in Amsterdam, is offered work in a subsidiary in Slovakia: Can she accept and bring her husband with her? Would she discover she needed to fall within the remit of the intra-corporate transfers? Or within the remit of the European Directive on Students?21 How about Ryan who catwalks for the autumn collection in Milan: Would he have some limited equality rights under the single permit directive (2011/98/EU) or would he be considered a seasonal worker, in which case his residence would be subject to a strict time limit?22 Bryce, who teaches English in Krakow, will have a tough time bringing over his mother Allie who needs care: She would count as third country national family member and member states have stricter domestic regulations on family reunion than the regime applicable to Union citizens. Cillian, originally from Belfast, has been living in Madrid for over a decade working as a software developer. Frustrated by not having his say in the referendum, he considers naturalising to fool his country’s intention of stripping him of his rights as European citizen. Would he be able to pass the language proficiency test (DELE, Diplomas de Espanol como Lengua Extranjera) and another one on his knowledge of Spain (CCSE, La prueba de conocimientos constitucionales y socioculturales de Espana) that Spain imposes since October 2015? Would he need to renounce his original nationality to naturalise in Spain? Kylie, from Gibraltar, runs a bed and breakfast in Barcelona since 2010: Will she be required to apply for the European status of long-term residency for third country nationals or can she keep the more advantageous permanent residency? Dexter is part of an avant-garde theatre group in Amsterdam but he lacks any serious command ofDutch: Can he naturalise or will he be hindered by the ‘integration test’ the Netherlands imposes since 2007? Abigail, who is a part-time tourist guide in Stockholm, is anxious about her studies in biology: Would they let her continue working? Will she now need to pay the 15,000-euro tuition fees for non-EU nationals?
Annabel came to Rome as a student. She has a relationship with an older, married man and does not want to go home. Her American cousin overstayed her visa in Australia. Can she just stay put? Maybe her lover will file for divorce? Maybe not. If she stays put, can she be detained? According to the EU’s Return Directive (2008/115/EC), post-Brexit British citizens who do not, or no longer, have a right to stay would have to be expelled, by force if they did not go voluntarily. To facilitate departure, they could be detained for up to six months, or up to 18 months if there were complications with their removal.
While UK citizenship is currently seen as part of the elite club of the top-quality nationalities scholars predict a drastic fall in value. Dimitry Kochenov speaks of ‘one of the most radical losses in the value of a particular nationality in recent history (...) a loss of 30% of UK nationality’s value, an overwhelming downgrade to the level of Argentinian and Chilean nationality’ (Kochenov 2016a).23 This effect is partially due to the fact that entitlements tied to national citizenship are, albeit with many caveats, made exportable, which basically extends the reach of national citizenship across its national borders: There is differential treatment between claims made against host member states and those made against home member states. Claims against host states are subjected to stricter conditions (e.g. Case C-308/14 Commission v United Kingdom; Case C-333/13 Dano) whereas claims against home states to looser conditions (e.g. Case C-359/13 Martens). This has led to the claim that Union citizenship would rather reinforce national citizenship, than the opposite (Strumia 2015; contra Davies 2005).
An agreementless Brexit, some claim, means ‘that UK citizens in the EU would have a legal position inferior to Russians and Moroccans (whose countries have non-discrimination agreements with the EU)’ (Kochenov 2016b).24 For some, ‘British expatriates in the EU will be, in effect, the eggs that have to be broken to make the omelets of those British politicians who feel uncomfortable living next to Romanians’ (Peers 2014).
The tales of Oliver, Francisca, Ryan, Abigail and the others work as a powerful reminder of the fact that people all around the Union rely on their treaty rights to make life choices. It is not only libraries - pace von Kirchmann - that ‘only three words of the legislature can destroy.’ Let us see if we are able to give some solace to them. I suggest doing so requires advancing a theoretically informed inquiry. But first let us be clear about why such a take is needed.