Saving Citizens’ Rights?
It is clear from the softness of the sources foreshadowed above that opportunities for freezing rights will need to be found elsewhere. The remedy venues open to post-Europeans are different from those of second country nationals in the UK since member states are continuously bound by European law. As third country nationals in the Union, British citizens resident in member states may fall within the ambit of EU law with the effect that they would be able to invoke EU general principles of law and the Charter of Fundamental Rights of the European Union in respect of their rights. They would, however, do so as third country nationals, and no longer as European citizens.10 For many: ‘Brexit presents the EU with an opportunity to clearly demonstrate the high value of European citizenship if UK nationals living in other member states can be assured that they will not lose their EU citizenship rights but rather that those rights will be ‘frozen’ on the day the UK formally ‘leaves’ the Union’ (Carrera et al. 2016). How can this be done?
Residence rights can be maintained as derived from the existence of family ties with European citizens. British citizens who are family members of Union citizens are better off than those without such connections: (s)he would fall within the scope of the Citizens Directive, which provides for residence rights. Some EU doctrinal constructs reinforce this claim. The famous Zhu and Chen doctrine could impact on a member state exit scenario in which the nationality of a child be such that the child is a Union citizen and has nationality separate from that of the parents who hold the nationality of the exiting state.
The case giving name to the doctrine concerned Catherine Zhu,11 a child born with Irish nationality ex iure soli, following the deliberate choice of her Chinese parents to have the child delivered in Belfast to guarantee Union citizenship be bestowed upon her. The European Court of Justice concluded that the UK could not deny the right of residence of Catherine merely because her Union citizenship had been acquired to assure residence rights for the third country national parent. The mother was recognised a right to residence in the UK on the grounds that she was primary carer to a minor Union citizen residing there.
The doctrine may have bearing on situations in which a child is born in another European member state that allows for ius soli at birth. In such a case, the parents of the child, as primary carer, could be granted residence rights in the Union so as not to deprive the child’s rights to residence of any useful effect. Consider, for example, the case of the child who acquired Union citizenship though nationality of a member state ex iure soli, by birth on the territory, and the parents have UK nationality but the child does not; either because the parents are unable to pass on their nationality ex iure sanguinis or because the child is born on the territory of another state who does not recognise the possibility for the child to hold multiple nationalities. Such cases may derive from a combination of British and EU member state provisions. Consider, for example, the UK nationality law, according to which a person born abroad to a citizen - who acquired citizenship by descent, and is not in public service - does not acquire citizenship automatically, and is prevented from doing so through registration in the event the parent(s) have not resided at any time in the UK for three years. If these provisions are taken in a combination with the nationality provisions in Austria, Belgium, Bulgaria, Croatia, Czech Republic, France, Greece, Ireland, Italy, the Netherlands, Portugal, Romania, Slovakia, Slovenia and Spain that allow for ius soli acquisition combined with a variety of residence and other requirements, indeed, the Zhu doctrine may come into play.
This possibility will call for strategic decisions being made in certain families in case of Brexit. A person can enjoy certain rights attached to Union citizenship even in the case that the status as such is no longer held, even if it is merely as a flickering light of a flame that once burnt.
But how about autonomous rights to residence? Human rights treaties lay down obligations owed directly to individuals and often provide direct access for individuals to international protection mechanisms (Shaw 2014, p. 711) and remaining member states, as well as the UK, are bound by, inter alios, the European Convention of Human Rights, even though increasingly unpopular within certain political circles. In the event of state succession within the Union ‘some rights linked to the possession of member state nationality and, therefore, to the citizenship of the Union, that are being exercised in the moment of gaining independence can be retained by certain categories of people’ (Gonzalez Marrero 2016, p. 188). This would be the case also in Brexit Britain.
Is there a possible retention of residence rights to be established on the grounds of the European Convention of Human Rights and the doctrine developed by the European Court of Human Rights in the landmark Kuric and others v. Slovenia?12 It could be argued that there is a strong link between the right to reside in a certain territory and the human right to private and family life as laid down in Art. 8 ECHR.13 Most probably residence rights will be frozen.