By Gareth Davies
When Britain leaves the EU there will be several million citizens of other Member States living in the UK, and probably around a million UK citizens living elsewhere in the EU. What happens to their rights when they suddenly cease to be living in the EU, or to be a Union citizen? This was one of the three ‘divorce’ issues that were addressed in the first phase of Brexit negotiations (the others were the Northern Irish border and the financial arrangements around withdrawal). That phase ended in December 2017 with a joint report to the Council setting out a basis for a future withdrawal agreement.
The citizen’s rights chapter of this report (paras 6-41) was the easiest to negotiate. The reason for this is that the UK, even fervent Brexiteers, had always maintained that it had no desire to throw out Union citizens already living in the country, and so very quickly the two sides could agree on a guiding principle: a freezing of the status quo. Those with Union rights at the time of the breakup would continue to enjoy them for as long as they remained, even if that be for life, while those who migrated after the Brexit date would fall under whatever new regime might be negotiated. The position of those who may arrive during a transition period, if one is negotiated, was not discussed, and is now the subject of fierce exchanges.
Thus where Union citizens and family members live in the UK on the basis of the citizen’s rights directive (2004/38), or Article 21 TFEU, or where UK citizens and family members live in other member states on either of these bases, at the date of withdrawal – which will probably be 30th March 2019 – then they will continue to enjoy the same rights, including non-discrimination and rights regarding social assistance, as they did before. The rights of their future children will also be the same as if the directive still applied, even if the children are adopted, conceived or born after Brexit. Moreover, the right to be joined by family members falling within Article 2 or Article 3(2) (partners in durable relationships) will continue after Brexit, provided that the relationship existed before Brexit day. The right to be joined by other Article 3 family members, such as more distant dependents, appears to be dropped after Brexit. For those who have lived in their host state for more than five years, their right of permanent residence, which gives them a right to social assistance if necessary, will continue provided they do not spend more than five years continuously abroad.
Both sides will adopt legislation to ensure this, and on the EU side the Court of Justice will be the final authority, as it will be EU law, while UK courts will be required to interpret the UK law in the light of Court case law, and will even have the possibility to refer questions for up to eight years.
One of the great problems for those living in the UK has always been its somewhat random approach to administration, veering between nonchalance and mercilessness, so that a migrant is typically not required to do any kind of paperwork in order to get on with their life, but should they for whatever reason actually need to prove that they have been resident for the past years will be faced with inflexible demands that they document every weekend away, every job and home, and almost every pizza that they have ordered. Thus proving that one has been living on the basis of the directive could be difficult, a particular problem for those wanting to show five years of directive-based residence in order to claim a permanent residence right.
The UK has now promised to sort out its administration, and make it reasonably easy to actually claim rights, as well as dropping its indefensible approach to sickness insurance, which it has used in the past to opportunistically deny residence rights. It is to be hoped that it actually does all this, for while the document setting out this promise is clear and reasonable it is easier to state an administrative goal than to reach it.
So far so good, but there are some unresolved problems of scope and clarity. The mention of Article 21 TFEU is important, as this ensures that the carers of young migrant citizens are covered – the Chen situation. However, what about those falling under Article 12 of regulation 492/2011 – the Teixeira and Ibrahim cases? These are the children of former workers, whom the Court has said enjoy a right of residence on the basis of this provision, for themselves and their carers, which is independent of the citizenship directive. The technical note on citizens’ rights which is attached to the joint report says (at point 8) that the educational rights established in Teixeira should continue, without mentioning residence rights. However, in that case the Court found that the residence rights were a corollary of the educational rights, so implicitly we must assume that this continues to be the case – at least unless the Court changes its mind.
In practice, a greater problem may come with rights concerning social assistance. For those who are not economically active and do not have permanent residence this is a notoriously grey area, full of tensions and contradictions. The directive says that such migrants should be self-sufficient, but also says that they should only lose their residence right if a claim for social assistance is unreasonable. The Court’s commentary on this has added to uncertainty as much as resolving it. This vague law is not a very satisfactory basis for an agreement on rights for a relatively vulnerable group. The Union citizen denied assistance in a host state can go home and come back, but a citizen who maintains residence rights under the Brexit agreement and then loses them has lost them for good. The circumstances when this happens really ought to be laid down more precisely than ‘unreasonable’ entails.
A very concrete problem concerns the movement rights of UK citizens living in the EU. They may be able to continue in their host state with their families, but the agreement says nothing about their possibilities to move to another Member State. The Commission’s view is that this is for the next stage of negotiations, (point 58 of the technical note) as it falls within the scope of future arrangements regarding trade and movement. In any case, it notes in an explanatory memorandum (page 9), they will be at least third-country nationals and so enjoy the movement rights which EU law already grants these. These are not nothing, particularly after five years of residence, but the difference from current free movement rights is considerable, and this will be quite a concern for expat Brits.
Some of these points may be cleared up in the final withdrawal agreement. However, it is still possible that this will never happen. The December report is not a binding agreement, but a consensus on the basis for writing one. There are two reasons why things could still go wrong. Most simply, negotiations could break down on the details. This is actually most likely regarding the Northern Irish border, where the December report contained little more than an agreement to resolve the irresolvable. However, as the report says in paragraph 5, ‘nothing is agreed until everything is agreed’. Certainly the domestic politics of the UK mean that the translation of this concept agreement into a fully detailed and binding one is not inevitable. As well as this, the UK has always seen the divorce agreement as part of a package also including the future UK-EU relationship. If that is satisfactory, then the UK is happy to also accept the agreements on Northern Ireland, payments and citizens’ rights. Yet so far there has been no breakthrough on the future relationship, with the UK proposing a continuous stream of creative a la carte arrangements and the EU insisting that the options are (i) regulated trade in goods, (ii) full membership of the internal market or (iii) no deal. Unless one side blinks, that makes ‘no deal’ a realistic possibility, which means that the UK would probably refuse to sign the envisaged withdrawal agreement. In particular, it would be politically impossible for it to agree to make payments to the EU if it did not get a satisfactory trade agreement. That would not necessarily be a disaster for citizens, as the UK might well unilaterally grant them similar rights, but they would certainly not be exactly the same.
Alongside all this, the Court of Justice has thrown its cap into the ring in the recent judgment in Lounes. This is sufficiently unprincipled that it can only be understood as yet another judicial attempt to intervene in politics, alongside the Commission v UK judgment just before Brexit and the tragic and shameful judgments on working women wearing headscarves in Achbita and Bougnaoui handed down just before the Dutch election.
Lounes concerned a Spanish women who after several years of residence in the UK naturalized to become a Spanish-British dual national, and as a result dropped out of the scope of the citizenship directive, since that only applies to those living in a state other than their own. This was a problem when she wished to bring in her third-country spouse, as British immigration was less generous than the directive on this matter.
The Court found that it would be contrary to the logic of integration if a migrant citizen who successfully integrated into their host state, by naturalizing, ended up losing rights as a result. Therefore, such a citizen must continue to enjoy rights equivalent to those in the directive on the basis of Article 21(1) TFEU even after naturalizing.
The reasoning is odd. It is in fact precisely the logic of integration that it goes alongside a loss of certain rights. EU free movement rights exist to protect the migrant who is not integrated, and needs protection and assistance in the process of building up a life in their new state. At some point they have achieved this – naturalization being the high point of this – and they no longer need such special treatment, and drop into national law, as befits their status as nationals. Just as adults lose certain privileges and protections granted with children – although acquiring others – the successful immigrant is at some point no longer an immigrant, and ‘logically’ loses the special protections that immigrants enjoy.
Still, one could argue that the fear of losing directive rights would discourage naturalization and so be a hindrance to integration, and use this to justify their extension. What is striking though is that in Lounes the relationship began several years after the naturalization. If one builds up a family as a migrant citizen then there is certainly something to be said for protecting the vested rights which family members have accumulated under the directive after the primary migrant naturalizes, if only from a perspective of justice and human rights. However, to say that a naturalized citizen enjoys special family rights for an indefinite period, apparently for the rest of their life, and can bring in family members under a legal regime not applying to their co-citizens is quite a challenge to the idea that all citizens of a state enjoy equal rights under the law. Nor is it plausible to think that many people might refuse to naturalise on the basis that perhaps one day they will form a relationship with a non-European. And if they do – tant pis. That is their choice.
Lounes is not really a convincing interpretation of the law. What it is, is a message to those affected by Brexit. Many British expats or Union citizens in the UK are considering naturalizing, in order to protect their position after Brexit, and the Court is saying ‘go ahead – we will still consider you to fall under our protection, and you will not lose any rights. You can have the best of both worlds’. It is in a way a judicial extrapolation of the negotiators ‘freeze the status quo’ approach. The question is whether the negotiators knew that the Court was a third party to the negotiations, and whether it ought to be.
There are some difficulties applying Lounes to Brexit: the Union citizen who lives in the UK and acquires a second British passport is no longer in a Member State after Brexit, and so one could argue that the ‘logic of integration’ no longer applies. The same could be said of the Brit who acquires a second Dutch passport, and after Brexit is, on the one hand, in their home state, and on the other, a Third Country national, and so in neither case the subject of EU integration logic. Still, both began their migrant lives within the sphere of Union law, so probably one can say that they should not be penalized for continuing the process of integration already begun. Lounes is about precisely such people.
This makes the pending case before the Dutch courts on the rights of UK citizens interesting. Sponsored by a British barrister who once worked for Advocate General van Gerven, the litigants aim to ask the Court of Justice whether they should continue to enjoy their Union citizenship rights even after ceasing to be formally Union citizens as a result of Brexit. They wish to extend the logic of Rottmann apparently, in which the Court said that Member States measures affecting whether people acquire or lose citizenship of that state, if those measures affect the access of the individual to Union citizenship, are subject to Union law and must be proportionate.
The legal mechanism, presumably, would be to say that where Brits have exercised their citizenship rights to establish in other Member States, those citizenship rights vest, and Member States must continue to recognize them even after the individuals cease formally to be Union citizens. There is literature arguing that Union citizenship should be linked to residence in the Union rather than nationality which would presumably support this. However, it would be conceptually and politically quite a big step to effectively undo an aspect of Brexit, and grant Union citizenship to non-citizens, and it might even cause a rush of emigration from the UK to the rest of the EU before Brexit day. If the UK were not so relaxed about double nationality, one might even imagine it causing problem for the British citizens involved.
Yet although it is the kind of fairly far-reaching political choice that a normal court would probably not take, Lounes in fact gets us most of the way there. Perhaps, if the reference is sent, the Court will simply reply that this question has already been answered – repeating its famous statement that Union Citizenship is destined to be the fundamental status of Europeans, so that those who have embraced it, by exercising its rights, can no longer have it taken away. This destiny-based reading of EU law, as not just a Treaty, but an expression of the identity of a continent, beginning with Van Gend en Loos and carrying on through Grzelczyk, would support such an approach. Bad luck though for the Brits who stayed at home.