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Brexit: The End of European Citizenship?

Charles Gomez

Brexit: The End of European Citizenship? You Read it First in Reach

By All Souls Day 2019 (“Halloween” in its Old English and Scottish denominations) the United Kingdom of Great Britain and Northern Ireland (and Gibraltar) will have departed the European Union after a legal relationship that started coyly in 1973 with our membership of the European Economic Community.

With that departure will come to an end a process started in earnest on the 23rd June 2016 when the “UK Member State” voted by a majority of 51.9 % to 48.1% to secede from the Union and which has brought many to the verge of a nervous breakdown. The wheels of history roll on…

Charles Gomez, Barrister – Charles Gomez & Co

So far, most of the focus, post the Referendum has been on the rights and obligations as between the Member States of the European Union to the sound of an almost hysterical cacophony, especially from some in the millennial generation in the British Isles accusing those who voted to leave of being senile old xenophobes who had robbed the younger generation of their ability to travel, study and work in whatever EU country they wished to.

I voted to remain, so I do not feel alluded to although I am amused by the apparent disregard of the millennials and fellow travellers for the hard fact that almost everything that they have has been toiled for by the Baby Boomer generation of which I am a specimen, which we and our predecessors’ taxes have paid for.

Still, as a lawyer I have a particular interest in the consequences of Brexit on individual civil rights. As a matter of English & Welsh, Scottish, Northern Irish and Gibraltarian laws, and even EU law, have the citizens of the United Kingdom and Gibraltar acquired “legitimate expectations” arising from UK membership which, it would be legally wrong to revoke?

Nigel Farage
Nigel Farage

Expectations often create enforceable legal rights. Moreover the matter goes further than mere expectation because Article 20 (1) of the Treaty on the Functioning of the European Union states that:

“Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties.They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States…”;

From Roman times the so called jus soli (the right of a person born in the Empire to citizenship) was remarkably difficult to eliminate. In our time it has until very recently been difficult to withdraw citizenship even from recently naturalized convicted terrorists. In fact it is only this month (August 2019) that the English courts have finally approved the revocation of British citizenship in the case of Ashraf Mahmud Islam a member of ISIS convicted in a Kurdish tribunal and who now faces the death penalty in Syria.

Can the individual rights of 64 million UK citizens to EU citizenship be made to disappear at the stroke of a pen?

European Citizenship Brexit
Brexit: The End of European Citizenship?

To complicate matters even further, the European Court of Justice retains jurisdiction in relation to matters pertaining to the rights of citizens of the EU – that would of course include an attempt at removing those rights.

There is a school of thought that the European Court of Human Rights might also have jurisdiction. On the other hand there are learned academics including some responsible for drafting Article 20 (1) of the TFEU who say that EU citizenship is not after all a citizenship in the real sense i.e. that it does not give individual rights which survive the departure of their Member State but merely a status.

Thus, all is set for the mother of all legal cases. Was it right to for the EU to refer to the status as “citizenship” if it did not have all the attributes of real citizenship? My guess is that the EU is going to have a hard time rejecting the claim of up to 64,000,000 British citizens that notwithstanding Brexit they remain entitled to all rights of EU citizens in respect of freedom of movement.

Brexit: The End of European Citizenship? You Read it First in Reach

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