Around 1.3 million British citizens are currently settled in other EU member states, but do not have citizenship of those countries. Just like EU citizens living in the UK, they can do this by relying on free movement rights granted by the EU. Speaking precisely, Article 20 of the Treaty on the Functioning of the European Union grants Union citizenship to all citizens of member states. Union citizenship then confers such free movement rights. But can such Union citizenship, once granted, be taken away?

This important question has just been referred to the Court of Justice of the European Union by a district judge in Amsterdam. See the Waiting for Tax blog for an unofficial translation of the reference.

The consequences are potentially massive: if Union citizenship cannot be taken away once granted, then potentially everyone who is a British citizen at the point of Brexit would continue to be an Union citizen post-Brexit. This would mean that British citizens could move visa-free through Europe and settle there after Brexit, even under a no-deal Brexit, even if EU-27 citizens would not have reciprocal rights to settle in the UK.

Cases can take years to be decided, but given that Brexit is scheduled for 29 March 2019, it is likely that the case will be expedited so it can be heard quickly.

Prospects of a successful legal result

Article 20 of the Treaty on the Functioning of the European Union provides as follows:

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.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties…

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.

The applicants in the present case, Brexpats, appear to argue that Article 20 provides for the gateway through which citizens of a member state become Union citizens, but doesn’t deal with whether and how citizenship of the Union is removed. As such, the Court of Justice should tackle that – and rule that Union citizenship is not, in fact, removed when a country leaves the EU.

Their argument does have a point. Just like Article 50 was never meant to be used, Article 20 does not seem to envisage a country actually leaving the EU.

Nonetheless there are problems with the Brexpats’ argument.

EU citizenship tied to nationality of a member state

Firstly, it appears to run counter to the limits set on the definition of Union citizenship in Directive 2004/38/EC (the Citizenship Directive).

It is not just the Treaty which determines the functioning of EU citizenship: Article 20(2) states that citizenship rights depend additionally on the limits defined by any measures adopted under the treaties, such as regulations and directives. The most important such measure is the Citizenship Directive. This directive defines Union citizenship, sets out the rights which Union citizenship grants in detail, and serves as the legal bedrock for free movement of persons in the EU.

Union citizenship is defined as follows in Article 2 of the directive:

“Union citizen” means any person having the nationality of a Member State;

This key clause is bad news for Brexpats, as once the UK leaves the EU, they will not have the nationality of a member state. Once UK citizens no longer have member state nationality (because the UK would no longer be a member state), then taking the directive at face value, they will no longer qualify as Union citizens.

UK citizens would get free movement, EU citizens would not

Secondly, it would be an extraordinary result if the case were successful, as Jolyon Maugham QC, supporting Brexpats’ case, has indicated. All UK citizens at the point of withdrawal would retain Union citizenship, with all the associated rights to move freely across EU countries. There would seem to be no way of differentiating between British citizens residing in another EU country and British citizens living in the UK for the purposes of defining who is or is not a Union citizen. (It would seem that anyone born or naturalised after the date of exit would not gain such rights except in their potential capacity as children and spouses of Union citizens.)

This would mean that while EU citizens could not settle in the UK under EU free movement rules, UK citizens could settle in the EU through free movement rules meant only for citizens of member states. Putting it another way, the border between the UK and the EU would be concrete for EU-27 nationals but liquid for British citizens. This state of affairs would be a surprise, putting it mildly, although extremely welcome for British citizens such as myself!

Prospects of a successful political result

What the Brexpats’ campaign, including their application to the Court of Justice, does successfully is draw public attention to the way that the 1.3 million British citizens living in the EU are being used as pawns in the Brexit negotiations. It is important that their status is resolved as soon as possible so that they can understand what their next steps should be. That the Court of Justice will be able to finally resolve their legal status as regards EU law not only draws publicity to their campaign but allows the campaign to better understand their next steps.

This news therefore should be welcomed, whether or not the Court of Justice ends up deciding that we all can remain Union citizens post-Brexit.