By Gareth Davies
Many Europeans in the United Kingdom and British citizens on the continent are currently wondering whether they should adopt the nationality of their host state, in order to guarantee their residence rights after Brexit. One disadvantage of doing this is that they cease to be foreigners, people living in a state ‘other than that of which they are a national’ (Article 3, Citizenship Directive) and so lose all the specific rights that EU law grants to migrants in a host state, most notably those concerning family members. These migrants’ rights are largely found in the Citizenship Directive, and are the basis for the provisions on Citizens’ rights in the draft Brexit Withdrawal Treaty. Ceasing to be a foreigner thus creates legal risks, as well as advantages.
Lounes has now added an interesting twist to this situation. The essence of this judgment is that a migrant Union Citizen who naturalizes cannot be compared to a native citizen – their migrant history means that they should be treated differently, and continue to enjoy the rights they had as a migrant. It holds out the possibility of the best of both worlds for the potential Brexit victim. On the one hand, all the security that comes with possessing the nationality of their host state. On the other, all the privileges that come with being seen as a migrant in EU law. The draft Withdrawal Treaty, published on 28th February, seems to take this approach too. However, before the champagne can be uncorked we must wait for the final Treaty text, for it would only take small changes in the way that it defines those it protects to spoil the naturalization party.
Lounes concerned a Spanish woman, Ms Ormazabal, who had been living in the UK for some twenty years. In 2013 she met a Tunisian national, Mr Lounes, who was unlawfully present. She married him, and wanted him to live with her in Britain. British immigration law would not allow this, so she hoped to rely on the Citizenship Directive, which explicitly grants the right to migrant Union citizens to be accompanied or joined by members of their family. It is irrelevant to this right that the family member was previously unlawfully present – like joining the French Foreign Legion, when a non-European marries a migrant European their slate is wiped clean.
The situation would thus have been uncontroversial, were it not for one thing: a few years before meeting each other Ms Ormazabal had naturalized, and become British as well as Spanish. The Directive quite unambiguously applies only to Union Citizens living in a state other than their own (Article 3). The Court has been faced with citizens trying to evoke the directive in their own state before, and has never allowed it, and it did not do so this time. Ms Ormazabal was now a citizen of the UK, and so the directive did not apply. However, an individual may fall outside of the directive but still derive rights from Article 21 TFEU, the right to move and reside throughout the EU. This was the case in Lounes.
The Court found that despite now being British, Mr Ormazabal could not be compared with British people who had never been abroad. She was, after all, still a migrant – she had come from Spain. Therefore she should continue to enjoy the rights which she had enjoyed as a migrant Union citizen prior to naturalization. The formal basis for these rights would now be Article 21, but in substance her directive rights would simply carry on.
It is an oddity of EU law that migrant citizens enjoy special rights not available to locals. The distinction is sometimes described, and attacked, as reverse nationality discrimination, and it can certainly look like that. The Court deflects this critique by referring to the scope of EU law, which in its view only extends to those who have exercised their EU rights by living in a state not their own. The Court simply has no authority over internal situations, it claims.
Both the critique and the rebuttal are rather unsatisfactory. They are over-formal, and fail to engage with the underlying reasons for granting selective rights. These reasons are not difficult to grasp: the person who arrives in a new state is more alone than the one who belongs there and has not moved. The new arrival can use some active help with building up a family life, help that on the whole is not needed for locals. The teacher pays more attention to the new child in the class, and the state – or at least the EU – holds out a helping hand to the new arrival, to help them establish themselves. The reason for different treatment between locals and migrants is simply that they are in different situations.
Hence the reason why Ms Ormazabal deserves special rights is not her nationality as such, but the fact that she came from Spain – that she moved. The logic of integration – to paraphrase the Court – would suggest that her nationality is actually irrelevant. Even if she were only British, if she had grown up in Spain and moved to the UK as an adult there would be the same normative argument for granting her the family rights of a migrant. Although this situation has not arisen it is quite likely that the Court would do this – it is little more than a combination of Garcia Avello and Surinder Singh. The point, at any rate, is to help the migrant Union Citizen settle in a new state, and their need for that help must surely be more to do with their life story than their passport.
The point is important because it is what saves the law here from illegitimacy: dividing citizens up into groups according to their origins and giving them different rights is a normatively dangerous game. Such distinctions are justified if they correspond to real, objective, substantive, differences between the groups. Otherwise they are indeed discrimination and anathema to EU law (Article 18 TFEU, Article 21 CFEU).
The difficult question is how long a migrant remains special. Certainly in the early years, but at some point one would hope that they become integrated in their host state and the need to treat them with kid gloves would pass. We hope that after a while the new child settles, and can be treated just like every other child in the class. Thus if integration succeeds, which must surely be a goal of EU law, there will come a point where the justification for special rights is no longer good. To continue rights beyond that point is no longer helping movement or settlement, but merely discriminating. If the new child is getting special treatment a year after starting, something, somewhere, has gone wrong.
This is what makes Lounes so odd. If Ms Ormazabal had been married to her Tunisian husband when she moved to the UK, and then naturalized (or had been a dual national when she came) it would make perfect sense to allow him to come too. If she had met him while purely a Spaniard in the UK, and they had begun a life together on the basis of the directive then surely his rights should not be whisked away when she became British. However, she met him several years after she became a British citizen. She had been living in the UK for more than 15 years. In what way was her situation different from that of an indigenous Briton? She had certainly moved in the past, but what was the relevance of that to the situation at hand? Was she not long past the stage of special protection? The logic of special rights for migrants simply does not work when those rights are applied to family bonds which come into being long after the migrant is fully integrated.
A contrast may be made here with the U-turn cases, where it is only rights already exercised abroad that may be brought home. The U-turnee cannot rely on EU rights for new relationships started long after they came home. Yet if we see naturalization as a form of ‘coming home’ then that is exactly what Lounes allows.
The Court explained its decision by saying that it would be contrary to the logic of gradual integration if naturalization led to a sudden loss of rights. In one sense this is nonsense: naturalization could be seen as a – somewhat formal – marker that integration is complete. As such, it would indicate that the phase of special protection is over. It is precisely at the point of naturalization that one would expect the status of migrant to end – both the disadvantages and the privileges.
Yet one can perhaps make a different kind of argument, more policy based and purposive, that if people fear loss of rights then they will not naturalize, and so integration will be hindered. That is certainly plausible if people already have non-European family members. However, would many people think ‘if I become British then if one day I meet a non-European I will not be able to benefit from the directive’? A few lawyers might, perhaps. Maybe one should look at the situation more holistically: migrants enjoy the sense of a special rights status, and special protection by the Court of Justice, and the migrant who would be eligible for naturalization might be deterred from doing so by the thought that they will lose all this protection and be subject to the whims of national law. Whether nor not the average migrant thinks in this way, there is certainly one large group for whom such thoughts may be very common: the Union Citizen in Britain as Brexit day approaches. More about this below.
What Lounes does not discuss is how long after naturalization the migrant continues to enjoy their directive-like rights, their special migrant status. It would appear that this must be for life, unless the Court is to invent some arbitrary cut-off time. It is very strange to think that the migrant who naturalizes aged thirty five will, forty years later, still living in their ‘new’ state, still be regarded by the Court as a migrant, and still be entitled to special rights. Moreover, it is likely to create tensions with national law, and the idea of the equality of all citizens. Can a citizen enjoy substantively different rights because of their origins? When an individual is included in a community of law, are they a lesser – or greater – member because they were once outside it? It is not just Metock which rejects this philosophy, it is also alien to the legal tradition which claims that when a person becomes French, they acquire the Gauls as ancestors. It will be a challenge for national courts and authorities to accept the easy distinctions in Lounes.
That challenge will be magnified if Lounes applies to those who switch nationalities instead of accumulating them. Spain and the UK are fairly relaxed about dual nationality, but plenty of European states are not. Supposing Ms Ormazabal had surrendered her earlier nationality to become British. Would the principles of the case still apply? It is hard to think of a reason why not. It is not the fact of her extra passport that explains the Court’s approach, but the fact that she has migrated – has exercised her rights, if one must. But if she were to enjoy an indefinite special status in British law purely on the basis of her past mobile life, without even the formal comfort of a second nationality to explain it, that would certainly bring a frown to a few republican brows.
Lounes is arguably less about integration between Member States and more about creating a new distinction within them. EU law is creating a new class of mobile citizens, whose rights are not dependent on their nationality or location, but upon the fact that they move or have moved. Wherever they may go, for the rest of their lives, they will enjoy special legal privileges and the special protection of the Court. Not only do they have the family rights at issue in Lounes, but they can challenge procedures and rules more widely when these cause them particular inconvenience because of their cross-border lives. These cosmopolitans comprise many of the staff of the EU institutions, and are also likely to be particularly Europhilic. Yet more importantly, they are the citizens who generate integration, partly by their challenges to obstructive rules, but mostly just by living their lives and bringing the outside into every national inside. We movers are in a sense the clients of the EU, and Lounes is another stamp on our loyalty card.
The very important question, however, is whether those living in Britain will be able to redeem their free cup of metaphorical coffee. Lounes seems to offer comfort to the Union Citizen with a third-country family member who is considering naturalizing; they will not be subject to British immigration law, but will continue to enjoy their EU rights. However, the question is whether these EU-Treaty-based will be reflected in, or undermined by, the eventual UK Withdrawal Treaty.
The Draft Withdrawal Treaty
The negotiating documents agreed in December 2017 contained a summary of the joint EU-UK position on citizens’ rights post-Brexit. This position provided several problems for the naturalizing citizen. The – understandable – starting point was that the people who needed to be protected were those living in the UK or on the continent as a foreigner, on the basis of EU law. However, a naturalized citizen such as Ms Ormazabal derives her residence rights from her new nationality. The whole framework of protection seemed to ignore someone like her.
The draft withdrawal agreement, released by the Commission on 28th February 2018, changes this. Although it is intended to reflect the December texts, it appears to have Lounes-proofed them: it declares that the citizens’ rights chapter applies to Union Citizens or UK nationals “who exercised their right to reside in a [Member State/the United Kingdom] in accordance with Union law before the end of the transition period and continue to reside there thereafter” (Article 9(1)(a) and (b)). This looks like a much more generous formulation: as long as someone went to another Member State on the basis of EU law, the fact that they may now be living there on the basis of national law does not seem to exclude them. Ms Ormazabal certainly went to the UK on the basis of EU law. She should therefore be one of the protected group. In any case, Lounes arguably implies that even as a naturalized citizen she continues to enjoy and exercise Union residence rights, solving this problem completely.
It must be admitted though, that the contrary can be argued – firstly, that Lounes can read more narrowly, and does not entail that Ms Ormazabal was actually exercising a Union residence right, and secondly, that the draft text covers only those exercising their Union law right at the end of the transition period. Then Ms Ormazabal would not be protected. This reading fits the general intention to ‘freeze’ the situation at that date somewhat better. On the other hand, the former reading better fits both Lounes and the idea of protecting the lives that people have built up abroad.
The agreement goes on to include the family members referred to in the Citizenship Directive – which includes spouses (Article 9(1)(e)). It is a condition that those family members, if already present, must have resided in the past on the basis of Union law (Article 9(1)(e)(i)), but thanks to Lounes this should be the case: even if the Union citizen married after naturalization and their partner nominally has a national law residence right, Lounes says that Union law also gave them a residence right, even if they did not know it at the time.
The Draft goes on to state that rights of residence, non-discrimination, and so on will continue for life (Article 35), essentially as they are expressed in existing EU law. The individual who naturalized after they moved, and their existing family members of the type referred to in the directive, should find that their legal position does not significantly change.
However, what if a beneficiary of the withdrawal agreement forms a new family relationship after the transition period ends? Do they still have Directive-equivalent rights to bring this person to live with them? It should be said that there are special provisions on children, but regarding spouses the situation is a little ambiguous. Article 9(1)(e)(ii) of the draft extends protected family members to include those living outside the EU at the end of the transition period, as long as they have a family relationship as defined in Article 2(2) of the Citizenship Directive (i.e. a spouse, registered partner under certain situations, dependent child etc) at the time when they seek residence. The very strong implication is that it was not necessary to have that family relationship when the transition period ended. If Ms Ormazabal were to meet and to marry a new partner years after the transition period has ended then it would appear that she would probably have a Directive-equivalent right to bring him to live with her in the UK. This is also the view that the Commission expresses in a footnote to Article 9. Lounes lives on; once a migrant, always a migrant.
There are two small stings in the tail. While a person who acquires British or Union citizenship as a second status still clearly falls within the protected group in the draft, the person who switches nationality appears to fall outside it – for then they cease to be a Union Citizen in the UK or vice versa. The text makes that factor central to its scope. Such people then only have Lounes to suggest that they still deserve some special treatment. For Britons on the continent who become European, that should work. However, for the Austrian who switches to British citizenship it is not obvious that it will – for Lounes is an interpretation of Article 21, and that will no longer apply as such to the UK. The withdrawal agreement is clearly intended to be exhaustive, and it is far more difficult to read a Lounes-type argument into it, not just because of its more precise and technical text, but because of its lack of purposive context: the Court, even the Court, could hardly suggest that the withdrawal agreement should be read in the light of a commitment to ever-closer union.
On the one hand, if the text is adopted then the need to naturalise will be far less, which may comfort those coming from states that do not allow dual nationality. On the other, even if residence is guaranteed, a person may wish to vote, or pass on nationality to their children. If they become British, they probably have to accept that in doing so they become a normal British citizen, and no longer a Lounes-protected mover.
The other little sting is where the migrant forms a new relationship after the transition date, but with a person who is unlawfully present and not one who is outside the EU. That was the situation in Lounes, and Metock, and is often enough litigated in national courts. Under Union law, once the family relationship is formed, the past is irrelevant. However, the draft refers to family members who were either residing according to Union law before the end of the transition period, or those who were outside the Union at that time. If a German marries an unlawfully present non-European in Sweden, he can stay. If she marries him in the UK after the transition period, he cannot. If true love blooms, the person falling within the draft agreement should first send their lover home, and then marry them. The right to sweep away the history of their partners is reserved for Union Citizens within the Union.
The draft withdrawal agreement is a basis for further negotiation. It is certain that it will not be signed in the form now published, and it may not be signed at all – problems with other chapters, notably the provisions on Northern Ireland, may yet torpedo the whole. However, the Citizens’ rights provisions are not the most controversial aspect of Brexit any more. There is at least a fair chance that the substance of these will survive.
Yet the devil is in the details. Small changes in wording between December and February have made a great deal of difference to the naturalized citizen. For the question is, first of all, whether one is trying to protect the foreigner, or the person who arrived as a foreigner? Then there is another question: is the aim to protect the families which will exist at the end of the transition period, or to protect the abstract rights which will be enjoyed at that time? In both cases, the Union negotiators have smoothly transitioned from the first to the second question, perhaps inspired by Lounes. What the coming months will reveal is how hard the UK will try to reverse this move, and whether they will succeed. The content of the debate is entirely predictable. What is less obvious is how much each side actually cares.