Reasons to be European

Still European Citizens?

In the Brexit agreement negotiated between London and Brussels, little or no consideration was given to the question of what happens to our EU citizenship. Might we still be, as the agreement ungainly puts it, 'Union citizens'?

There is a persuasive argument that UK citizens who held European citizenship prior to Brexit continue to hold European citizenship. True, what very limited case law there is indicates that loss of a member country's nationality incurs the loss of European citizenship. Cutting a long story short, that line of argument was centred on the stripping of criminals' newly acquired national citizenship. It can hardly apply to the whole-scale deprivation of the rights of millions law-abiding Britons.

The continuing right to European Citizenship is based on the much firmer ground, both legally and morally. The Lisbon Treaty was agreed in 2007 and came into force almost precisely 2 years later. According to Article 20, clause 1: “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.”

The crucial point is not the second sentence (since the UK technically left the Union in January 2020) but rather the final sentence. As plain as a pikestaff, it's declared that European citizenship is an addition to national citizenship. It is surely hard to see what this additionality can mean other than that, once granted, citizenship of the Union has a legal life of its own.

As far as I am aware, the Union has never at treaty level explicitly deprived Brits of their European citizenship. It follows, then, that those Britons who enjoyed Union citizenship before Brexit continue to enjoy that right. Quite apart from the distaste in international law for something as momentous as the deprivation of citizenship, it surely cannot be that the European Union would ever cheerily remove its denizenship from millions of its British members. It can’t be emphasised strongly enough that at no point does the Lisbon Treaty explicitly say that the rights of a European citizen are conditional upon a country remaining a member state. The obligations incumbent on an affiliated State wishing to leave were dealt with in the now almost-forgotten "Clause 50". But silence reigns over how citizens are to be treated.

Citizens are individuals. Though common sense might suggest that, with Britain s departure, every British subject's European citizenship goes out of the window, yet the almost moral argument for the legal autonomy of European citizenship is reinforced by Lisbon's confirmation of the considerable legal weight of the earlier Charter of Fundamental Rights of the European Union from 2000. The Charter made clear from its outset - in its defining preamble, no less - that the point of establishing a Union citizenship was that '[it] places the individual at the heart of its activities’.

In practical terms, what next?

Taken together with the Charter's confirmation that the additionality of European citizenship should be construed in the light of the effect on individuals, those with undisputed British and European citizenship should make this case in Europe. It is not about rescinding the British state's exit from the Union but solely about the rights of individuals. A small administrative fee would not be a high price to pay for a piece of paper certifying that anyone who was a UK citizen (or even those just holding a British passport) before 11.00 GMT on 31 December 2020 remains a citizen of the European union.

Those in Britain fearful of uncontrolled immigration have nothing to be afraid of. It would only allow for freedom of movement within the European Union. Nothing could be done for those who fall foul of the cut-off point. Nor would it be injurious to British nationality. Going back to Lisbon, Union citizenship 'shall be additional to and not replace national citizenship'.

Advocatus Castrensis, 2021