Abstract
This paper investigates European citizenship after Brexit, in light of the functionalist theory of citizenship. No matter its shape, Brexit will impact significantly on what has been labelled as ‘one of the major achievements of EU integration’: citizenship of the Union. For the first time an automatic and collective lapse of status is observed – a form of involuntary loss of citizenship en masse, ex lege, for EU citizens of exclusively British nationality that, however, does not create statelessness and is likely to be tolerated under international law. This loss of citizenship is connected to a reduction of rights, affecting not solely the former Union citizens but also current Union citizens, such as second country nationals in the United Kingdom and their family members. The paper comes in six sections. The first section sets the problem of legal uncertainty afflicting second country nationals in the United Kingdom and British citizens turning from expats to post-European third country nationals. The second section explains why a theoretically informed inquiry is needed. The third section describes the theory and delineates three ways in which it applies to Brexit. These three directions of inquiry are developed in the following sections. The fourth section focuses on the intention of Union citizenship: Which rights can be frozen? The fifth section determines the extension of Union citizenship: Who gets to withdraw the status? The key finding is that while Member States are in principle free to revoke the status of Union citizen, former Member States are not unbounded in stripping Union citizens of their acquired territorial rights. In the final section some conclusions as to the nature of Union citizenship are drawn. Policy-suggestions are summed up in a table at the end.
Highlights
The book aims to explain the problems faced by European citizens in the UK and by UK citizens residing in member states of the European Union (EU) after Brexit
Integration tests, that are mentioned in the Third country national long-term residence directive but not in the Citizens directive, may be a hinder for freshly minted third country nationals with British passports, probably still European in colour, who may be subjected to such tests. Another policy suggestion could be to ease, or waive, the requirement of integration tests so as to facilitate the makeover from second country national to third country national. Those having lived in the country less than five years could be granted leave to stay: Former Union citizens living in member states since less than five years would be able to make a claim in favour of freezing rights in the process of being acquired; since the Kurić doctrine would count to protect residence rights to be taken into account for a future application for status as long-term third country national
Were the Commission to take up the challenge, it would find that the Rottman doctrine of the European Court of Justice would go a long way in doing the job of explaining why loss of Union citizenship cannot be imposed unilaterally by one’s state of nationality
Summary
Abstract The book aims to explain the problems faced by European citizens in the UK and by UK citizens residing in member states of the European Union (EU) after Brexit. Brexit will need to imply changing the territorial scope of application of the EU Treatises. This will bring changes to the personal sphere of validity of EU law. There are many issues surrounding the procedure of exiting, when the UK will do it, about the constitutionally legitimate procedure to do so, about the drafting techniques of the treaties, in parallel or subsequently, that Article 50 will require on exit and future relations, and how the Brexit withdrawal Treaty may be enforced, what happens if the UK changes its mind during the negotiations, and more..
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