A British citizen who has lived in France for 36 years has taken a case to the Court of Justice of the European Union which could have profound implications for Britons living in European countries after Brexit. The woman hopes to retain certain citizenship rights after ceasing to be a European citizen.
The British presumably lost their European citizenship on January 31, when the UK ceased to be a member state. It changes their rights when it comes to living and working in EU countries – and even free travel within the EU. When the Brexit transition period ends on December 31, 2020, a period of major uncertainty begins.
The law is never simple. When the rules on citizens’ rights were drawn up, it was not for the purpose of determining what to do if a member state ever left the EU. Before Brexit, EU citizens would never have run the risk of losing their European citizenship unless their national citizenship of an EU member state was withdrawn. This only concerns people who are not European citizens by birth and who have either obtained their citizenship by fraud or put it at risk because they have committed a crime.
Efforts have already been made to bring the issue of the loss of British and European citizens to the attention of the European Court, but they have failed. These cases have mainly based their arguments on what is called the fundamental statute of European citizenship. It is the idea that European citizenship is a right that cannot be arbitrarily taken away. This is something that the European Court has introduced and then developed in its past decision-making since the case of a French student who fought for access to government benefits in Belgium. In this case, the Court introduced the idea that “trade union citizenship is intended to be the fundamental status of nationals of member states, allowing those who find themselves in the same situation to benefit from the same treatment in law whatever their position. nationality, subject to expressly provided exceptions ”.
In the context of Brexit, the argument is that UK citizens in the EU have done nothing to justify losing their rights, even if the UK leaves the Union. No one has successfully argued this case in court, however. Cases must be brought before the European Court by the national courts, which hear the cases and then refer the issues to the EU level if necessary. The claimants have never convinced a national court that the questions in their case should be sent to the EU judge – until now.
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In this French case, a British citizen residing in France maintains that she should not have been removed from the electoral list for the French municipal elections of March 2020. Voting and standing in regional and municipal elections are inherent rights of the European citizenship. The French Court therefore asks the European Court, among others, to clarify whether the Brexit Withdrawal Agreement, as well as Article 50, are to be interpreted as resulting in the loss of European citizenship for all former British citizens of the ‘EU.
The reference to the European Court also includes a question on the EU citizenship status for a specific group of UK citizens – those who made use of their right to free movement before the end of the Brexit transition period and have been installed in an EU Member State for over 15 years. The delay is important because it is after 15 years that British citizens lose their right to vote in British elections. If, as in this French case, these citizens now lose their right to vote in their host country, they are deprived of their political rights.
The result will be of particular interest to the approximately 1.3 million British citizens living in the EU. Many are hoping that Brexit doesn’t necessarily mean the end of their rights.
The case argues that UK citizens who moved to an EU member state had a legitimate expectation of being able to stay there indefinitely. When they decided to emigrate from the UK, they rightly assumed that the rights they had when they first settled in would continue to exist.
At best, the CJEU will provide a clear answer to the question regarding the loss of EU citizenship for UK residents abroad with a resounding ‘no’.
But other than that, even a simple clarification of what will and what will not happen to these people after Brexit would be welcome. A positive decision by this court would clarify their status, ensure them a secure residence, equal treatment and political rights, which would otherwise depend on which state they choose as their new domicile.
It could take years for the CJEU to rule on this case, so it is important for UK citizens living in the EU not to hope. At the same time, they live without any legal certainty. The Brexit withdrawal agreement signed by the UK and the EU stipulates that member states must ensure that all UK citizens living in their territory can register for a new right to stay. But in most cases, this new status does not compare to the basic status of European citizenship. The rights it confers are minimal and do not automatically include access to health care. It is up to each Member State to decide what it wants to offer, under what conditions and for how long.
That is why it is worth keeping an eye on this case when it goes to the CJEU. It could offer much greater legal certainty to British nationals affected by Brexit.
Anne Wesemann is Senior Lecturer in Law, The Open University. This article first appeared on theconversation.com