It is fair to say that since June 23, 2016 – the day the UK voted to leave the EU –the 48.1% of the electorate that voted to remain have voiced some concerns. Indeed, many of the concerns expressed by this minority are shared by EU citizens residing in the UK who were unable to vote in the referendum, with none more important than the idea of rights to free movement within the EU. The concept which grants rights such as residency, entry and exit from the territory of EU Member States without prejudice is EU citizenship. Article 45 TFEU also encompasses some of these same rights, but applies only to workers. In contrast, EU citizenship status, enshrined in Article 20 TFEU, is granted to all Member State nationals by virtue of their Member State nationality. As made clear in that provision, EU citizenship does not replace nationality but is additional to it. This status was first introduced 24 years ago, in the Maastricht Treaty 1992. The most recent study in 2012 showed that a third of the population of foreign citizens in EU Member States are individuals from other EU Member States, indicative of large volume of people who have made use of their rights to free movement.
Associate citizenship of the EU
With the vote to leave the EU and the subsequent process of withdrawal that the UK must now undergo, it is clear that EU citizenship will no longer be a status accorded to British nationals. Though nothing is set in stone as yet, this much is fairly clear. However, this would mean British nationals can no longer enjoy the rights to free movement and residency that are currently enjoyed by all EU citizens. Plainly, this is one of the consequences that Britain must be prepared to accept as it negotiates its exit in the coming years. Unsurprisingly, there have been voices of discontent from sections of the “Remain” electorate about the unilateral “stripping” of their EU citizenship and calls for some consideration of a voluntary citizenship of the EU for British citizens. Most recently, this has crystallised in the form of Amendment 882, brought before the European Parliament by MEP Charles Goerens, to offer citizens from a former Member State what would be known as “associate citizenship”. The Amendment offers a new regime for discussion amongst high level EU officials. This is the most thoroughly considered of all the suggestions thus far on any alternative arrangement for British citizens post-Brexit. In contrast, other suggestions concerning the retention of citizenship rights after Brexit have not been as formal as Amendment 882 and are also less specific about solutions to the problem of losing of EU citizenship status after Brexit. The proposal here is for an opt-in with payment of a membership fee; in return, individuals would have some of the rights guaranteed by the Treaty under Articles 21-22 TFEU: to free movement, to residency, and to vote and stand for election in the European Parliament. The right to consular protection, petitioning the European Parliament, recourse to the Ombudsman and right to communication from EU institutions in the citizens’ own language are not included. The effect therefore, would be retention of a form of citizenship of the EU.
It is clear where this sentiment is coming from. While the referendum was won by “Leave”, over 16 million people in the UK did vote to remain in the EU. It is assumed that these voters would have wanted to retain the benefits of being part of the supranational entity, including EU citizenship and its associated rights. Furthermore, EU citizenship has been granted to the entire British population and these individuals feel that they did not choose for it to be taken away from them. Indeed, as a right that impacts the majority of the population in the EU, its loss will be felt by many. Speculation is already rife about the visa requirements for British citizens in the EU after Brexit. Therefore, the outcry arguing in favour of a way to retain EU citizenship and its requisite rights is unsurprising. However, there is equal outcry about associate citizenship of the EU as a solution.