Brexit and citizenship of the European Union
Published on 5 June 2020
Brexit called into question what many had based life choices on: that as citizens of the EU they could move, live, and work freely. Our research examined whether that citizenship is a fundamental right that people cannot be stripped of against their will.
The aim of this research is to offer a fundamental rights reading of European Union Citizenship at a time where individual life choices based on the assumed certainty of Union Citizenship and the right to free movement are put in jeopardy. The withdrawal of a Member State from the European Union serves as a prism through which to revisit the conception of Union Citizenship.
The research highlights the potential of a normative, fundamental, and human rights approach to Union Citizenship that includes individuals in the EU legal order and protects them against exclusion through the removal of that right. That allows a coherent interpretation of the recent case law on citizenship, the Charter of Fundamental Rights of the EU and the general principles of Union law as derived from constitutional traditions of the Member States and international law.
If Union Citizenship is understood as such a fundamental rights-based concept, then the intrinsic connection between being a Union citizen and a national of a Member States of the Union competes with the protection of Union citizenship as a fundamental right that is conferred on each individual. Union Citizenship is not just an objective status that States can confer and remove against the will of the individual. This has concrete consequences: even though January 31 2020 marks the effective date that the UK as a state left the EU, that has not extinguished the exercised rights of European citizens be they UK or EU27 nationals.
In 2016, Prof Roeben started this research project, supported by a grant from the European Parliament. He, Dr Petra Minnerop, Prof Jukka Snell and Dr Pedro Telles initially produced a report.
In 2018, this team then authored two articles that appeared in one issue of the European Human Rights Law Review. The first of these develops the thesis of Union Citizenship as a fundamental right. While this article takes primarily the perspective of EU law, the second article explores the situation under classic public international law. This is the branch of law that governs the relation between independent sovereigns. It indisputably is applicable to the relations between the UK and the EU27 after the withdrawal has become effective. The article demonstrates that the 1969 Vienna Convention on the Law of Treaties also prescribes that the withdrawal of a state from a treaty leaves existing individual rights unaffected. That is an important normative confirmation of the results of the analysis of EU law that the first article provides.
Prof Roeben then obtained another grant to organise an academic conference on the topic. The proposal that he, Dr Minnerop and Prof Snell edit a volume on European Union Citizenship on the basis of that conference was accepted by Oxford University Press. Under the contract with OUP, the volume is due to be published in 2021.
Findings contained in the report were first presented at the European Parliament and the European Commission in 2017. They were then the object of an opposition day motion at Westminster in 2018 that called on the UK government to negotiate the status of Associate EU Citizenship for British nationals.
In 2020, a number of UK citizens have now brought a test case in the European Court of Justice (the General Court). This applicants are challenging the decision of the Council of the European Union to adopt the Withdrawal Agreement with the UK without making adequate provision to safeguard the rights that UK nationals hold qua their Union Citizenship. The case is based on the argument that the research has developed. The case is currently still pending.
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