Enacting Union Citizenship
Before the involuntary loss of status imposed on millions of British citizens on both sides of the border, it seems that the possibilities of challenging this provision are quite limited and unattractive.
The EU organs cannot by themselves push for decoupling. There is not much the Commission can do to hinder an exiting state from stripping those nationals who belong exclusively to the exiting state of the Union’s status civitatis. There is a slight possibility that the European Court of Justice might push in this direction, on the basis of the Rottman doctrine. Doing so would pose serious risks: If impetus to decouple Union citizenship from nationality derives from a decision by the European Court of Justice it can be attacked on democratic grounds and be found at odds with the current constitutional arrangement of the EU. The Court of Justice could exploit this window of opportunity, but only at the cost of showing itself uninterested in obeying to democratic standards and perhaps also disposed to perturb the constitutional arrangement.
The EU member states are in a better position to further decoupling in order to save the status for (at least some) British nationals. Some scholars have suggested they use this position to create ‘a form of Union citizenship unmediated by any prior national citizenship’ (Morgan 2016). Of course, there is the impervious road of re-drafting the Treatises but, given its political improbability and legal impracticality, I shall put this option aside. Nonetheless, the Council may help to coordinate member states wishing to ease naturalisation for locally residing British citizens, automatically transform the status of permanent residents into third country national long-term residents, or in other ways seek to either maintain the status of Union citizen for post-European Brits or to freeze rights. Whereas a member state is not free to engage in mass naturalisation on its own initiative (lest it violates the principle of sincere cooperation), coordinated member states are not liable to objections about undemocratic or unconstitutional behaviour to the same extent as a court.
Last but not least, there is another way to save the status that has hitherto been overlooked: Union citizens themselves might push for decoupling. This can be done in two different ways.
The first way consists in activating a citizens’ initiative (Art. 11 § 4 TEU). If a million EU citizens, coming from at least seven member states, sign an initiative and the Commission decides to propose legislation as a result of it, the status of Union citizenship may well prove to be ‘destined to become the fundamental status’ of nationals of (former) member states as well. It is politically remote that, first, Union citizens show much solidarity with remainers; and second, that the Commission, who, in its role of guardian of the Treatises, generally endorses the traditional reading of nationality matters being domaine reserve (see above 6.3.), would favour decoupling. As a matter of law, it remains possible for Union citizens to help British citizens who have been stripped of the status they once shared. There are constitutionally foreseen venues, so unsettling of the arrangement would not be necessary. The democratic quality of such an initiative would not be challenged as it emerges bottom-up: It is the very role of citizens within a polity to be mindful about the primordial political right of defining the demos.
Moreover, the citizenship initiative introduced by the Treaty of Lisbon is itself a supranational political instrument. The citizens’ initiative introduced by the Treaty of Lisbon was framed specifically for giving voice to cross-national political concerns on the basis of a political conception of EU citizenship: The Regulation of the EU Parliament and the Council on the citizens’ initiative from 2010 emblematically fixes the threshold at ‘0.2% of the population.’ Also, there would have been no point in setting different thresholds for different countries if the petition names were to stand merely for national interests rather than a cross-national opinion.
It is one of the elements that allows to make the claim that Union citizenship does not merely consist in mutually recognised privileges, but also in supranational political rights. Using it to save the supranational political rights of citizens that risk losing these - because of decisions possibly made by a member state government following a non-binding referendum in which the most affected were effectively disenfranchised35 - strengthens the claim that an initiative on decoupling with the purpose of saving the status as Union citizens for British resident in the Union ought to be taken seriously even by a Commission otherwise reluctant to move in this direction. Were the Commission to take up the challenge, it would find that the Rottman doctrine of the European Court of Justice would go a long way in doing the job of explaining why loss of Union citizenship cannot be imposed unilaterally by one’s (ex member) state of nationality.
There are solutions that would enable the Union citizenry to enact its citizenship, as Engin Isin has called it (Isin and Saward 2015), by becoming politically active and willing to contest arbitrary exercises of power.
Another way to enact citizenship is the second way for Union citizens to push for decoupling. The two ways are not alternative and can be pursued in parallel. Given the passivity of the non-British public before Brexit, the disenfranchised British citizens, with no other member state nationality to rely on, that are being deprived of the status of Union citizens, in a way that will also result, in a number of member states, in losing their local political citizenship, may petition the European Parliament to ask for a decoupling that will allow them to keep their status. The Parliament, even though sometimes reticent towards to the activism of the European Court of Justice in nationality and citizenship matters, is, contrarily to the Commission, the institution potentially most favourable to decoupling: It has on several occasions viewed its own mandate as representing the population of the Union and not merely the sum of nationals of member states.36 Petitioning Parliament does not amount to political initiative, but it could lead to a declaration by the Parliament inviting the Council and the Commission to provide for the loss of status. Since it would only concern former Union citizens and not all residents, there are chances a plea might be taken seriously.
This way to ‘save’ the citizenship of deprived British nationals remains open after Brexit occurs. All residents may petition the Parliament and, as we have seen, there are reasons for believing that British citizens currently resident in the Union will see their residence rights frozen.