Having EU Citizenship is highly valuable. That is why Tier 1 Investor Visa applicants and Tier 1 Entrepreneur Visa holders are so focused on obtaining settlement in the UK by instructing the best immigration solicitors in London. At present, not only does a person who has British citizenship have free access to the UK, but they also have the right to travel, live and work within the EU (although they must be exercising their Treaty rights to take advantage of the latter two rights).
Brexit has thrown the rights of British nationals to retain EU citizenship into doubt. 48% voted to remain in the EU and in London all 33 boroughs apart from Barking and Dagenham, Bexley, Sutton, Havering and Hillingdon, voted to stay in the EU. This is important as London, being the commercial and financial capital of the country, houses many citizens who highly value the ability to move freely within the EU.
And this freedom is, for all intents and purposes, to end in just over 12 months.
The fight to retain EU citizenship
It is not just those living in the UK who are concerned about the threat of EU citizenship being removed. British nationals who live in other EU Member States are worried about their residency rights once the UK leaves the bloc. They have therefore sought the help of some of London’s best immigration lawyers and barristers to have their right to retain EU citizenship decided in the courts.
Jolyon Maugham QC, who has been behind of Brexit legal challenges in Britain, is funding and supporting a challenge to the European Court of Justice (ECJ) by British citizens living in the EU who are seeking to retain their EU citizenship rights. Mr Maugham QC runs the Good Law Project which is coordinating a legal action to establish whether the UK can unilaterally stop the Brexit process if British voters decide the final deal is unacceptable.
Five British nationals living in the Netherlands had made a request to a court in Amsterdam to refer their case to the ECJ last month claiming their existing rights (such as residency and healthcare) could not be removed because of the UK referendum to leave the EU. The judge ruled on Wednesday that the case could be referred.
A spokesman for the lobby group, ‘Brexpats – Hear Our Voice’, which led the challenge, told the Guardian: “We are grateful to the court and obviously delighted with the decision. However, this is just the first step in clarifying what Brexit could mean for our EU citizenship.
“This case has always been about seeking clarification, not only for the 46,000 Brits living in the Netherlands, but also for all the 1.2 million Brits living in other EU countries.
“As has been demonstrated in recent days, what Brexit means is still extremely unclear. You cannot play with the lives of 1.2 million people as if they are pieces on a chessboard.”
The main points of the challenge
The first question the British nationals bringing the challenge to the ECJ want to be determined is whether Brexit will result in British Citizens automatically losing their EU Citizenship, and therefore the rights that flow from that, including the freedom of movement.
If the ECJ rules the answer to this question is no, the next point which needs clarifying is whether any conditions and/or limitations will be placed on the rights following Brexit.
The applicants are arguing the Article 20 of the Treaty of Lisbon provides British citizens with the right to retain EU citizenship after we leave the bloc, as Art. 20(1) states “Citizenship of the Union shall be additional to and not replace national citizenship”.
An ‘opt-in option’ for EU Citizenship?
Brexit Minister, David Davis stated in November 2017 that he would look at proposals to allow British Citizens to opt-in to retain their EU citizenship after Brexit (referred to as ‘associate citizenship’). The European Parliament’s Brexit chief Guy Verhofstadt has said the EU should be “generous and open” to British citizens who want to retain the legal protections of EU citizenship and their identity as Europeans.
However, there are bound to be problems with such an arrangement. The thorniest issue will obviously be regarding freedom of movement. Theresa May has made it abundantly clear that freedom of movement for EEA citizens into the UK will end next March, even if a transition period is negotiated (whether she can achieve this remains to be seen).
Therefore, it is difficult to see how the European Parliament will allow for British nationals to have access to the EU when EU citizens have had the door firmly shut when it comes to free access to Britain.
Then, of course, there is Northern Ireland. If there is no hard border and Northern Ireland remains in the customs union and single market, its residents will retain their EU citizenship by default. This is likely to cause an outcry from Remainers (and probably certain Leave supporters as well) who will argue it is grossly unfair for some UK nationals to retain the advantages of free movement whilst it is denied to others. In addition, the Democratic Unionist Party (DUP) on which the Conservatives rely to obtain their majority in the House have stated they will never accept Northern Ireland being treated differently from the rest of the UK.
One does wonder why such details were not sorted out prior to the referendum. At every turn, Brexit appears more complicated than ever.
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Posted on: Wednesday, 14 February, 2018