International Law Limitations on the Loss of EU Citizenship After Brexit

Abstract

In short, the paper makes the argument that EU citizenship, as prescribed in the EU treaties, should be taken seriously as a citizenship. Initially, it was unclear what significance this new status had. Over time, the EU institutions, primarily the Court of Justice of the EU, have been interpreting the meaning of citizenship. Through this process, EU citizenship has been gradually evolving into a proper “fundamental” legal status that brings the EU citizen into a direct legal relationship with the Union. Brexit, and the threat of UK nationals losing their residence rights in the EU, forces the issue of the current meaning of EU citizenship. Under international law, acquisition of nationality is largely within the discretion of the state, with limited exceptions. However, the loss of nationality is more tightly restricted. The discretion to revoke or terminate nationality is additionally limited by EU controls over loss of EU citizenship. This article concludes that, perhaps counter-intuitively, UK nationals who have validly acquired EU citizenship should not necessarily lose their EU citizenship when the UK leaves the Union because these persons now have a direct legal bond with the Union that Brexit may not be able to disturb. In turn, these UK nationals should retain EU citizenship and the resulting residence rights in the EU.