By Dr. Francesca Strumia
In terms of citizenship, national and supranational, the Brexit process entails a loss. Jo Shaw has referred to it as the most substantial loss of individual rights in Europe since the fall of Jugoslavia in the 1990s. Some of the profiles of loss are intuitive, or at least they have been extensively weighed in political debate, media commentary and legal analysis. This post, after restating these aspects in clear sight, proposes to focus on the least noticed folds of citizenship weakening that Brexit prompts.
The plague of European citizens in the exercise of free movement has attracted the most attention. On the one hand, EU nationals residing in the UK risk losing residence and corollary rights, including rights to work, to access benefits, to move in and out of the UK with security of status, to exercise political voice and to conduct untrammeled family life. On the other hand, UK nationals who reside in another EU country are in danger of losing the very status of European citizenship, and with it the rich armory of rights whose frame is set forth in the Treaties and secondary legislation, and whose scope the European Court of Justice has stretched in several directions. Legal arguments, judicial reasoning in the context of Brexit-prompted national and international litigation, and citizen-protective arrangements made and unmade in the context of the negotiations for EU withdrawal have focused on these two groups of citizens and their ordeal.
However citizenship loss embraces a much broader class of citizens than the estimated 4.2 million that the above mentioned groups add up to. Static European citizens, whether holding the nationality of the UK or of another Member State, are no lesser losers. There are two parts to their citizenship loss. First, supranational citizenship is, in the words of article 20 TFEU, an addition to nationality. It brings a broadening of status and an extension of rights. It gives national citizens a stake in the community of other Member States. In this sense, Brexit is an impoverishment of the status of national citizenship for every national of a Member State, albeit an impoverishment of different intensity respectively for UK nationals and for other EU citizens. For the former it is an entire loss of status, for the latter, it is a loss of a slice of status. With that loss of status goes, in both cases, the loss of potential rights: potential rights to live, work, love in the UK or in another EU Member State. Think, for instance, of the generation of young UK nationals who were not yet enfranchised at the time of the UK EU referendum in 2016 and who will step out of the supranational citizenship status they were born with, without having ever actively exercised it, let alone had a political chance to defend it.
In a second sense, citizenship loss for the static depends on the intimate connection between the nature of the EU as a legal order and the strength of supranational citizenship. With regard to the former, the CJEU has held in some of its seminal judgments that the now European Union represents a ‘new legal order of international law’, ‘the subjects of which comprise not only the Member States but also their nationals’. As a result, EU law is intended to confer upon individuals ‘rights which become part of their legal heritage’. Supranational citizenship embodies to some extent this legal heritage. Withdrawal of a Member State, while representing the exercise of an unquestioned sovereign power provided for in the Treaties, threatens that legal heritage and with it the coherence and reliability of supranational citizenship as a status. The threat is for all citizens of the Union, whether mobile or static. This threat raises the challenge to reconcile, on the one hand sovereign Member States’ power to recede from the supranational project, and on the other hand the solidity of the legal heritage entrusted to the notion of European citizenship. That challenge will survive the commotion and the acrimonies surrounding Brexit. It will probably engage the ranks of academia as well as of civil society for a long time to come.
In the meanwhile, and in the wake of a significant exercise of voice on the part of the European peoples in the 2019 European Parliament election, the challenge brings us back to reflect on the intuition, and aspiration, at the origin of the project of Union citizenship. In the words of the 1985 report of the Committee on a People’s Europe ‘Continuation of this venture rests on the assumption that future generations will also understand and appreciate one another across borders and will realise the benefits to be derived from closer cooperation and solidarity’.