Having notified the European Council on 29 March 2017 of its intention to withdraw from the EU, the negotiated Withdrawal Agreement and Political Declaration on the Future Relationship between the UK and the EU27 was thrice rejected by the UK House of Commons, forcing the Prime Minister to announce her departure.
On 23rd May 2019, well into the second extension of the ‘Article 50’ withdrawal process, the UK held European Parliamentary Elections (alongside the other 27 EU member states) with Brexit dominating the electoral landscape.
It remains to be seen when or indeed whether the UK will be leaving the EU. Yet, the Brexit saga has made one thing clear: even in the EU, full political membership of an EU member state, namely national citizenship, still matters greatly. EU citizens, exercising free movement rights, can reside in another EU member state and expect not to be discriminated against on the grounds of their nationality. Yet, while non-discrimination applies in respect of the right to vote and stand as a candidate in municipal and European Parliamentary elections in one’s EU state of residence, this principle does not apply in two key areas surrounding political membership where the 28 EU member states retain full competence: determining their citizenry; and determining voting eligibility for their national elections (and referendums).
In this blog post, I explore four roles that membership of the UK political community, and exclusion therefrom, played in the June 2016 referendum on EU membership and in its aftermath: First, the de jure electoral exclusion of most citizens of other EU countries who reside in the UK, referred to in EU jargon as ‘Second Country Nationals’, or SCNs. Second, the prominence of SCNs’ exercise, qua EU citizens, of free movement rights in the referendum debate. Third, the new-found legal vulnerability of SCNs in the referendum’s aftermath, especially given that the UK government sought to treat them as ‘bargaining chips’ in the negotiations. Fourth, the limited appeal of naturalisation as an effective remedy for SCNs’ predicament: while some SCNs can obtain UK citizenship whilst retaining their EU state of origin’s citizenship, and thus their EU citizenship, others are forced by their state to choose between full membership rights in the UK, and retention of their status and associated rights as EU citizens.
EU27 citizens in the UK have exercised their right to free movement. The explanatory notes relating to the EU Charter of Fundamental Rights suggest that ‘[c]itizens of the EU may not be considered as aliens in the scope of the application of Union law, because of the prohibition of any discrimination on grounds of nationality.’ The fact that SCNs are eligible to vote both in elections to the European Parliament and in municipal elections in their country of residence is designed to signify their political inclusion in that member state. The treaty right of every EU citizen to receive the protection of diplomatic and consular authorities of other EU member states when they travel to a third country in which their country of nationality is not represented means that, wherever they travel outside the Union, they can rely on the European family to protect them. Protected from discrimination, eligible to participate in some electoral processes, able to cross EU borders without hindrance or qualification: it is perhaps unsurprising that, psychologically, prior to the EU referendum, many SCNs living in the UK had not considered themselves as migrants.
Absent a general stipulation in UK law, eligibility to vote in referendums is determined on a case-by-case basis. The Scottish Independence Referendum (Franchise) Act enfranchised SCNs resident in Scotland in the September 2014 referendum which concerned Scotland’s continued membership of the UK family of nations, sending those SCNs an inclusionary message. In contrast, voting eligibility in the June 2016 EU referendum largely followed eligibility criteria for UK general elections. The general elections franchise, which I have critiqued elsewhere, excludes EU24 citizens: that is, citizens of all EU member states, except Cypriots and Maltese (enfranchised qua ‘qualifying Commonwealth citizens’) and citizens of the Republic of Ireland (RoI) (who enjoy historical reciprocal electoral arrangements). In announcing the EU referendum date the then Prime Minister David Cameron proclaimed that it is ‘the British people’ who ‘must now decide whether to stay...or leave’. By excluding EU24 citizens from participation, the British polity had sent them a message that their future residence and related rights in the UK would be determined by a political community to which they do not belong. Given that there are over 3 million EU24 citizens in the UK, their exclusion mattered electorally. Arguably, it had broader impact on the campaign. Most SCNs’ voices were absent from the referendum debate: as non-voters they would not have even received referendum leaflets, and no attempts were made to ascertain the impact a Leave vote would have on their livelihood.
‘Betrayed, disappointed, angry, sad, worried, unwanted, anxious, disillusioned’ is how an academic colleague has characterised the post-referendum sentiment felt by EU27 citizens. Polling conducted immediately after the 2016 referendum demonstrated that British attitudes to immigration ‘as a force for good or ill’ correlated significantly with voting patterns in the referendum, though the overall perception of immigration appears to have become more favourable since.
The inclusion of qualifying Commonwealth citizens, themselves subject to immigration control pursuant to section 2 of the Immigration Act 1971, in the referendum franchise had the regrettable effect of framing the debate around immigration to the UK as a ‘zero-sum’ game: leading Leave campaigners promised Commonwealth citizens that leaving the EU and ending free movement of SCNs would reduce migration anxiety and facilitate further immigration from the Commonwealth. Now, given that EU member states have competence to determine their immigration policies in respect of non-EU migrants, this was and remains a non-sequitur – albeit a relatively successful one, electorally. Indeed, the UK Government’s manifest intention to end free movement of SCNs is likely to be a form of ‘levelling down’: future SCNs will be subject to skills and income thresholds, downgrading them to the status of ‘ordinary’ migrants. They may even lose their participation rights in municipal elections (see my written evidence to the House of Lords EU (Justice) Sub-Committee’s Brexit: Citizens’ rights inquiry).
Since the referendum, the government has steadfastly refused to unilaterally offer those EU27 citizens living in the UK guarantees that, irrespective of the outcome of the negotiations, their existing rights will be protected. Instead, prior to and following the invocation of Article 50 of the Treaty of the European Union (the notification of withdrawal from the EU by the UK) on 29 March 2017, the UK government adopted a ‘bargaining chips’ strategy, tying their fate to that of Britons in the EU27. In November 2018, the Prime Minister commenced her ‘letter to the nation’ presenting the Withdrawal Agreement and Political Declaration on the Future Relationship by noting: ‘we will take back control of our borders, by putting an end to the free movement of people once and for all’. She then sacked a junior government minister for tabling an amendment calling for ‘ring-fencing’ of rights irrespective of the adoption of an UK-EU withdrawal agreement. Such treaty guarantees are critical given that, in their absence, a future UK Parliament could legislate to reduce EU27 citizens’ rights.
The naturalisation conundrum
It is perhaps unsurprising that Brexit uncertainty prompts EU27 citizens to seek legal reassurance through the acquisition of British citizenship, the ultimate guarantor of permanent security of residence. According to the Office of National Statistics, the number of applications for British citizenship submitted by EU27 citizens rose significantly and accounted for 29% of all citizenship applications in the year to September 2018 compared with 11% in the year to September 2016. Yet, while the UK is relaxed about multiple citizenship, several EU member states require renunciation of prior citizenship, including by persons acquiring citizenship of other EU member states (for more information, see the GlobalCIT database). The political price that, for instance, Austrian citizens are expected to pay for exercising free movement rights is heavy: to be either consigned to inferior political status in your member state of residence, given that no EU member state offers them full electoral inclusion – or to forgo your country of origin’s citizenship. It is heavier still against the background of Brexit, where such citizens face a choice between holding on to EU citizenship in a country that would then view them as migrants or acquiring British citizenship and forgoing the benefits that their EU citizenship entails.
After all, the Court of Justice of the EU may have predicted that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States’ but, as the Treaty on European Union stipulates, ‘citizenship of the Union shall be additional to and not replace national citizenship’. The EU logic, designed to make an Austrian citizen’s relocation from Vienna to London as seamless as from Vienna to Salzburg, faces sovereign brick walls.
As far as EU citizenship is concerned, to coin a phrase, ‘Brexit means Brexit’: pending alternative arrangements, UK citizens who do not hold citizenship another EU country are set to lose their individual EU citizenship on exit day, should one occur. Brexit thus (re)affirms the primacy of citizenship of a national legal order (the UK) by depriving most of its holders of EU citizenship rights. Concomitantly, the withdrawal process has already forced UK citizens’ neighbours, friends, and family members who are citizens of other EU member states to confront their previously unrealised legal vulnerability as migrants. The referendum and its aftermath serve as a stark reminder that, in a world of sovereign states, it is national citizenship which remains the ultimate ‘guardian angel’ for its holders – even if they are also EU citizens.
This article originally appeared in the IACL-AIDC Blog and is reproduced here with kind permission of the author