How Can it be Applied to Brexit?

From the functional perspective, EU citizenship is more similar to national citizenships than one might expect, notwithstanding the wording of the annexed Declaration to the Danish Act of Ratification of the Maastricht Treaty that states: ‘Nothing in the Treaty on European Union implies or foresees an undertaking to create a citizenship ofthe Union in the sense ofa citizenship of a nation-state.’12 Conceptually, both are middle-terms allowing connection between, on the one hand, criteria determining acquisition and loss and, on the other, entitlements associated with the status.

In keeping with the theory, we should start by distinguishing between, on the one hand, criteria determining access to the status and, on the other, the content of citizenship. It enables to visualise the characteristic bi-dimensionality of citizenship. We can thus see how the problem of vested or acquired rights emerges in the first place: The EU citizenship status, created by the EU Treaties, may be additional and thus have no independent existence following a State’s withdrawal from the EU for the nationals of that member state, but the material implication need not be that rights of citizens disappear.

The bi-dimensionality of citizenship shows gaps and asymmetries that arise between having access to the status and enjoying the rights connected to it. Such asymmetries are normatively suspicious (they lower the internal consistency of the status) but they sometimes appear as a matter of legal fact. The bi-dimensionality of citizenship explains why the consequences of constitutional territorial permutations for the enjoyment of supranational rights are not straightforward. Possession of citizenship status is non-territorial, even though rights attached to the status may be territorial.

Bi-dimensionality may thus demonstrate how state succession produces new foreigners who are affected by ‘quasi-loss’ of EU citizenship status (or invalidation ex tunc of the status) resulting in the impossibility to access rights.13 Bi-dimensionality also explains the asymmetries involved in cases in which people lost rights without losing the status due to racist immigration policies;14 or how others have the status but with a reduction of its content, like Manxmen and Channel Islanders who may vote for the European Parliament but are prohibited from free movement unless they reside five years in the UK; or how the Faroe islanders never had the status but de facto access (some) rights. The people of the Faroe Islands are Danes but not EU citizens. The Danish government added a protocol specifying that ‘the Danish nationals’ of the islands were not ‘nationals for the purposes of Community law’15 - which is basically the predecessor status of Union citizenship. Yet this limitation of the scope of application has virtually no impact on the Faroe islanders: ‘Given that limitation was merely territorial, there is no evidence that it has in any way affected the enjoyment of EU citizenship by the Faroe islanders, as long as they do not travel on the green Faroe model of the Danish passport, which they can, but are not obliged to request’ (Kochenov 2016).

Such asymmetries are easily spotted on the background of the bidimensionality that the functionalist theory builds on.

From a normative standpoint, the functionalist theory also holds such gaps to be unwarranted. The core design idea of the functionalist theory, as foreshowed above, is that legitimacy is dictated by fittingness of criteria (for acquisition and loss) to content. Depending on which entitlements are considered to be determinative of the content of EU citizenship, the relevant feature that people need to have to access these rights will change. This reflects on criteria for loss of the status as well. Such criteria stand in functional correlation to the content of citizenship in the same way as criteria determining acquisition. A first indication of this is of course that the rules on loss of citizenship vary remarkably across states, at least as much as the rules on the acquisition of citizenship (Vink and De Groot 2010; Vink and Chun Luk 2015). Consider, for example, the following:

Insofar as the entitlement that European citizenship is connected with is, say, the special right to consular protection, then a relevant feature is reciprocity of recognition or equal privileges, for which - commonly and not unreasonably - having the nationality of a member state is taken to be a proxy. Reasoning under such an assumption means it would be legitimate to withdraw European citizenship because there is no reciprocity of recognition on grounds of nationality (since, in the event of Brexit, the UK would no longer be a member state). It is so precisely because the entitlement attached to the status basically is a privilege to which one may cling only insofar as the reciprocity ground is upheld.

Insofar as the entitlements connected to European citizenship are such that the status is destined to be the fundamental status of Member State nationals - to use a famous phrasing of the ECJ - then, a relevant feature would be that of being fundamentally linked to, or affected by, the Union. Affectedness may stand as a proxy for ‘having ties to.’ Entitlements would not amount to mere privileges or special rights, but would need to embody supranational features. A case in point is supranational political rights. It would be legitimate to withdraw the status from those who no longer are affected by EU law but it would be illegitimate to withdraw the status from those who are enjoying it as long as they are affected. Will post-Europeans be affected by EU law? If they live in the Union, they surely will. Consequently, to strip them of their ‘fundamental status’ would be illegitimate. If they do not live in the Union the situation is different. It might be illegitimate to withdraw the status of those whose rights are frozen, depending on which these are. It will turn, in part, on which rights are frozen and whether the loss of status can be challenged.

Depending on what is held to be the content of European citizenship, criteria for withdrawal of the status will vary. The functionalist theory provides us with a standard against which we can test under which conditions withdrawal is legitimate.

But it also provides information in the other direction: Given a set of criteria for acquisition and loss, we may infer knowledge of the nature and type of entitlements compatible with such a set.16 The same is true for criteria determining loss. Under which conditions is withdrawal of status (il)legitimate? Answering provides an indirect source of information about which entitlements are attached to the status.

Both of these directions are important when we want to understand European citizenship after Brexit: If loss can be determined solely at domestic level, are entitlements still supranational rights? Vice versa, if entitlements are supranational individual rights, can loss be univocally determined by a Member State? In the next two chapters I explore both directions of inquiry. In the final chapter, I draw some conclusions about the nature of Union citizenship.

Consistently with the theory, ‘who gets to judge legitimacy of withdrawal of supranational entitlements?’ is a question the answer to which cannot be any member state that so wishes. A fortiori, this authority cannot lie with a former member state - who would then have full authority to judge over the legitimacy of withdrawal of supranational entitlements in a Union of which it is no longer part! If loss is imposed unilaterally and unconditionally by a member state, it is an indication of the fact that the entitlements that the status consists in are at most mutually recognised privileges. If grounds for loss are not unilaterally determined at domestic level, this very fact can be taken as an indication of, albeit not full proof of, the supranational nature of at least some entitlements.

Without looking to pre-empt the results of my inquiry in the next sections, it turns out that as far as criteria determining loss are concerned, there are limits to what States can do, even within their domaine reserve and this may prove to have repercussions in domestic legislation even after exit. In particular, the UK has strong incentive to reform its nationality and immigration law to avoid instrumental naturalisation and abuse of multiple citizenships. But European law imposes limits to what the UK can do to protect itself against this indirect way of undermining the point of Brexit. There are also things that the (citizenry of the) Union could do. As far as content is concerned, (some) rights may be frozen, but they are not those making Union citizenship a supranational legal status. The legal grounds enabling freezing are international, not European. This will be so at least until the EU adheres to the European Convention of Human Rights, an idea that lost traction in the wake of the ECJ’s Opinion 2/13 from 2014. Other rights can be saved, but it would require decoupling the concepts of nationality and Union citizenship. If the EU sees Union citizenship as a fundamental status, it need not depend on the idiosyncrasies of the application of domestic nationality laws. In Brexit, to save the supranational rights connected to Union citizenship, certain groups of people who lose member state nationality would need to keep their connection to the Union. The windows of legal opportunity for such creative solutions are very small. To determine which, let us see how rights can be frozen.

 
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