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How the courts gave us EU citizenship, and how Britons can keep it after Brexit

One of the most keenly fought battles in the run-up to Britain’s exit from the European Union has been over the existence and nature of citizenship. EU nationals in the UK have become bargaining chips before negotiations start, and UK nationals living in the EU are the collateral damage. As Prime Minister Theresa May prepares to trigger Article 50 and start the Brexit process, it is timely to ask just what citizenship represents.

At its heart, citizenship is the right to live and belong in a country and enjoy the protection of its laws. In the EU, it gives people a right to move to, and remain in, other EU states. And so, without a deal to protect citizenship rights, Brexit would be a dramatic moment for the more than 3m people from other EU members currently in the UK, and for the near 1m UK citizens who have made the opposite trip. Work and family lives have been constructed around these rights, and now they are in flux.

Rights and wrongs

As UK lawmakers tussle over the rights of EU citizens, the European Parliament’s lead Brexit negotiator Guy Verhofstadt has mooted the concept of “Associate EU Citizenship” for UK nationals. This would give them the option of paying a fee to retain EU citizenship and some rights.

A welcoming hand? Guy Verhofstadt speaks at Chatham House in January 2017. EPA/ANDY RAIN

This is only at the idea stage of course, and it also sits rather uneasily with one of the drivers of Brexit: the desire to reclaim sovereignty. It also fundamentally challenges what we mean by citizenship. Can such a thing be so easily acquired?

In truth, Verhofstadt’s idea is by no means the only route for UK nationals to acquire EU citizenship post-Brexit. This can be done through family ties: it has been estimated that as many as 6.7m people in the UK have an Irish-born parent or grandparent which may help them secure Irish citizenship.

Estonia provides an unusual route into free movement rights for non-nationals. It has established the first ever “e-residency” programme under which non-nationals can apply for a government ID which effectively gives them a transnational digital identity. They then set up an Estonian company, allowing them to trade in every EU country as a location-independent online business, without becoming an official Estonian national.

For the wealthiest UK nationals, Cypriot citizenship may be purchased through a €2m investment in government bonds, companies or land, or by making a significant contribution to major infrastructure projects. No residency is required. Malta has a similar programme costing €650,000, but requires one year of residency.

Money talks in Cyprus. Andrei Tudoran/Shutterstock

There are other routes, too. You could marry an EU national or study in another EU state, which can sometimes lower the usual five-year period needed to obtain citizenship through residency to two years. Failing that, the standard route of living in a host state for five years will usually suffice to obtain national, and therefore, EU citizenship. In some cases, individuals may hold dual citizenship and not feel they are losing their original nationality or identity.

Acquiring rights

It is no surprise that ideas around citizenship have emerged at the heart of the post-referendum debate. After all, the same themes of who belongs where helped to underpin support for Brexit. And so it is useful to remind ourselves how the assumptions about citizenship rights evolved in the EU.

The 1957 Treaty of Rome and additions made during the 1990s gave EU citizens the right to move and reside freely in other member states, and to vote and stand in European elections. As an EU citizen, you also get the diplomatic protection of any member state in a third country, and you can petition the European Parliament, apply to the European Ombudsman or communicate with EU institutions in any of the official EU languages. There are also economic free movement rights to work, set up a business and provide or receive services.

Of the citizenship rights, the most influential in the context of Brexit has been the right to move and reside freely. This is subject to limitations and conditions which were originally intended to ensure the free mover was economically active and contributing to the single market. However, the Court of Justice of the EU has, over time, interpreted the legislation implementing citizenship rights as a requirement not to be an unreasonable financial burden on the host state, and an obligation to have health insurance.

The ECJ has had a big role in defining the shape of citizenship. EPA/JULIEN WARNAND

Interpreting rights

In fact, the ECJ has elaborated greatly upon the citizenship rights set out in the 1957 Treaty, and this is precisely what national governments have found problematic, especially as EU enlargement has been thought to encourage “welfare tourism” among EU migrants.

The court attaches huge importance to the “fundamental status” of citizenship rights. This requires the kind of solidarity between EU citizens and member states which has been a step too far for the electorate of countries like the UK. As the ECJ interpreted away the “economically active” nature of EU citizenship, so it played a crucial role in hardening opinion against free movement and brought us to the point where Brexit (and possibly Frexit) became politically possible.

And the ECJ may have another card to play which will infuriate supporters of Brexit. The court has said that it has jurisdiction to assess whether people can be deprived of EU citizenship. It is therefore possible the court could mount a legal challenge to any Brexit deal that constitutes a deprivation of rights and legitimate expectations of citizens – both UK and non UK.

In the middle of all this political ping pong, back door citizenship and legal positioning, of course, are real people and families, living real lives which now look fragile and unpredictable. Citizenship may be reinterpreted, or even bought and sold, but certainty and security would offer a more valuable commodity.

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