The European Union has a common mission to extend, enhance and expand rights, not reduce them. We will never endorse their retroactive removal. The European parliament will reserve its right to reject any agreement that treats EU citizens, regardless of their nationality, less favourably than they are at present. This is a question of the basic fundamental rights and values that are at the heart of the European project. – Guy Verhofstadt, 2017
The second week of Brexit negotiations opens today in Brussels. A key issue that is far from being resolved is that of the continued implementation of EU citizens’ rights. The wide differences that exist between the EU guidelines and the UK’s position, concerning EU citizens in the UK and British expats in the EU are potentially a cause for concern. I don’t want to sound pessimistic, but the negotiations concerning the rights of British and EU citizens were supposed to be the easy part of the Brexit negotiations. But that doesn’t seem to be the case. As explained below, an absence of agreement between the UK and EU over citizens’ rights, not only jeopardizes other issues in the already difficult negotiations, but probably renders the political and economic negotiations unnecessary.
Indeed, this is not about politics or economics, but something much more important. This is about being able to sit on the roof-top of your car and admire the countryside around you, moving from one place to the other, never stopping until you run out of petrol. And when you do, the country that you find yourself in will accept you and make you feel at home. Of course, we all have our rules, and hospitality is not entirely free of charge. But the basic principle by which men, women and children can voyage from one country to another remains and cannot be questioned. The rights are not only acquired – they are inherent and inherited. This means that every single EU citizen can pass on those rights to his children and his children’s children, ad infinitum – reflecting the magnitude of the power of the European project.
EU citizens in the UK, and British expats in the EU are not asking for much. Most of us couldn’t vote in the referendum. Had we done so, the chances are that the UK would not be preparing for its withdrawal from the EU. Maintaining the status quo for all EU citizens, and ensuring that each and every one of their families is guaranteed the same EU rights, is the least that the UK can do. In fact, it is not a favour that we are asking – it’s a due. The UK managed to dupe its citizens into leaving the EU but it cannot con its EU citizens out of their citizenship.
By not aligning her proposals on those of the EU, Theresa May is threatening to destroy the very nature of EU citizenship and, worst of all, the people who represent it. There are so many people who are uncertain about what is going to happen to EU citizens’ rights. Questions not only concerning citizenship, but also the right to work, receiving UK pensions, EU and non EU spouses, and children of British expats. I, for one, represent the complexity of what the essence of European citizenship truly is. My professional qualification is from the UK, I have lived and worked in France , becoming a French citizen, and now live and work in the Netherlands. My wife is from Peru, but has now acquired Dutch citizenship. I personify the very concept that the Brexiteers voted against.
One must never think that nothing can go wrong with administrative procedures, and those who say that we are making a mountain out of a mole hill should think again. Anything is possible when you face the powerhouse of an often incompetent and narrow-minded administration who follows – blindly – rule books that they haven’t read. I have had this experience when moving from the UK to France, as far back as 1984.
All the questions and concerns emanating from British expats cannot be answered. One question, however, encloses all the worries that we, as British EU citizens living outside the UK, are experiencing: can our EU citizens rights be changed retroactively? The answer according to an official EU study is….yes, they can. I do have the feeling that there’s a potential serious breach of human rights in the European air hovering over Brexit.
Article 20 of the Treaty of the European Union states clearly that EU citizenship is an addition to, but not a replacement of, national citizenship. Once your country has opted to leave the Union, you will automatically lose your EU citizenship on the day that your country officially leaves. Thus, in the case of Brexit, all UK nationals will lose their EU citizen status on 29th March 2019, irrespective of whether the negotiations between the EU and the UK have been satisfactorily completed. Only the European Convention on Human Rights will continue to potentially protect EU citizens residing in the UK, if maintained in UK law, as Theresa May has recently suggested.
Two fundamental questions must be addressed when dealing with the problems faced by EU citizens in the UK, and British citizens in other member states. The first concerns the definition of EU citizenship and its implications, and the second relates to the notion of acquired rights.
As defined in Article 19 of the Treaty of the Functioning of the European Union (TFU), European citizenship prohibits discrimination “based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation” , whilst promoting residents to “move and reside freely within the territory of the Union.” If you think about it, the other three freedoms (movement of goods, services and capital) that form the core of what the EU stands for, are meaningless without the freedom of movement of people. The latter, thus, is the most important core concept that defines the whole raison-d’être of the EU. The legislation governing freedom of movement is detailed in Directive 2004/38/EC of the European Parliament and of the Council of 29th April 2004. It defines the rights of citizens of the Union and their families to move and reside freely within the territory of the member states.
Citizens of the EU and their family members have the right to move and reside freely within the territory of the EU, subject to certain conditions. This right is conferred directly on every EU citizen by Article 21 of the Treaty on the Functioning of the European Union. As specified in directive 2004/38, the following rules apply:
- Article 6: EU citizens can reside on the territory of another EU country for up to three months without any conditions other than the requirement to hold a valid identity card or passport;
- Article 7: To reside in another EU country for more than three months, EU citizens are required to meet certain conditions depending on their status (i.e. worker, student, etc.) and may also be required to meet certain administrative formalities;
- Article 16: EU citizens can acquire the right to permanent residence in another EU country after legally residing there for a continuous period of five years;
- Article 3: The family members of EU citizens have the right to accompany or join them in another EU country, subject to certain conditions.
EU citizenship and the right to free movement are regularly taken into consideration in the judgments of the Court of Justice.
Our decsion to convert the “acquis” – the body of the European legislation – into UK law at the moment we repeal the European Community Act is an essential part of this plan. This approach will provide maximum certainty as we leave the EU. The same rules and laws will apply on the day after exit as on the day before. It will then be for democratically elected representatives in the UK to decide on any changes in that law, after full scrutiny and proper debate.
Several cases emanating from international law demonstrate that the notion of acquired rights being untouchable in the face of radical external changes, is a fallacious one and, “as a rule, once the act or legal situation from which the subjective rights stem is terminated, those rights expire.” 1 That individuals may be adversely affected by the loss of these rights does not change the fact that the rights may be legally annulled. Unless, of course, that the rights become independent of the treaties that created them. In other words, “once the period of validity of a European regulation for a state ends, the rights created by it must end.” 1 Whether EU rights will cease for EU citizens in the UK and British citizens in other member states, will depend on (i) the UK’s legislation and judges and (ii) the EU’s legislation and judges, respectively. It is theoretically conceivable that British citizens living in other member states end up in a more favourable position, concerning EU rights, than their EU counterparts living in the UK, who would have to defend their current status against UK legislation – something that has already been condemned by Swedish minister Ann Linde.