Author: Niu Ltd

 

The United Kingdom and the European Union are currently negotiating the UK’s Withdrawal Agreement from the EU.  One of the key issues in the UK’s Withdrawal Agreement from the European Union is the determination of the rights of 3.5 million EU nationals currently living in the UK and 1.2 million UK nationals currently living in other EU countries.

The topic of immigration loomed large in the UK’s referendum debate on continued EU membership.  In the same month as the referendum vote, an Ipsos Mori survey reported that 33% of those surveyed indicated that the number of immigrants coming to the UK was one of the most important issues influencing their vote.  Nevertheless, it is not disputed is that immigration has contributed to the social and economic success of the UK.

In an open letter to citizens of the European Union published on 18 October 2017, the UK’s Prime Minister Theresa May stated, “We want people to stay and we want families to stay together. We hugely value the contributions that EU nationals make to the economic, social and cultural fabric of the UK”.  Promising that “citizens’ rights are [her] first priority”, she confirmed that it is not her intention to use citizens’ rights as bargaining chips in Brexit negotiations.  Mrs May went on to promise: “I couldn’t be clearer: EU citizens living lawfully in the UK today will be able to stay [post-Brexit]” with an easy route to settlement (also known as permanent residency).

 

Soft Brexit

 

A “soft Brexit” would allow the UK to remain in the Single Market when the UK leaves the EU but it would require the UK to continue free movement of people.  In this event, the UK would use the full gamut of its abilities to set criteria to monitor and restrict the numbers of people settling in the UK from the EU.

The UK currently has the right to control its borders, having opted out of the Schengen system in the Treaty of Amsterdam.  EU citizens wishing to reside in the UK under freedom of movement rights must be workers, students, self-sufficient people or jobseekers. The UK can also introduce restrictions to free movement if it affects the country’s public policy, public health or public security.

 

A soft Brexit deal is likely to see the current status quo being largely maintained, but perhaps with the introduction of temporary controls such as quotas on migrants arriving from specific regions in the EU where in-flow is high.   Alternatively, controls may be placed on workers and self-employed migrants, while free-movement – but with the imposition of a light-touch registration system – is maintained for students and economically self-sufficient migrants.

 

Hard Brexit

 

The Home Office’s immigration policy document which was leaked to the press on 5 September 2017, indicated the Government’s inclination to take a “hard Brexit” (or “clean-Brexit”) stance in the withdrawal negotiations.

 

A hard Brexit could see the UK leaving the EU without a deal in place.  Donald Tusk, the President of the European Council, has been clear that a “no-deal scenario would be bad for everyone, but above all for the UK.”  Although Mrs May has tried to move away from her initial “no deal is better than a bad deal” position, when pushed she continues to defend that stance.  Indeed, with negotiations reportedly stalling, Mrs May is under pressure by senior donors to the Conservative Party to be ready for a no-deal Brexit, rather than accept a bad settlement from Brussels.

 

A no deal would see the UK leaving the Single Market and the Customs Union and trading with the EU on World Trade Organization rules.  This, in turn, is likely to mean no compromise by the UK on issues such as free movement and would see the UK applying strict measures on EU nationals wishing to make the UK their home.  In this scenario, the UK is likely to require EU nationals wishing to live, work and study in the UK to obtain a visa prior to arrival in the UK under the UK’s current points-based immigration system which is in-place for non-EU nationals.

 

Should this happen, the entitlement of British nationals to reside in the EU under free movement rights would also disappear, and British nationals in the EU should expect to face similar legislative barriers to remaining in the EU to live, work and study.

 

Mrs May and her Government face a stark choice between a bad deal and no deal at all.  However, Brexit is an opportunity to address the weaknesses and strengths of the current domestic immigration system and design a system fit for our modern economy and ensuring the UK continues to attract and accommodate people from all walks of life and from across the globe who each play a part in the economic and social success of the UK.

 

 

Author: Natalie Loader, Associate, Mishcon de Reya LLP

 

Nationality of the Member State

 

The concept of citizenship has been at the heart of the European project from its very beginnings. The Treaty of Rome (25 March 1957) in fact already emphasises the importance of no discrimination on the basis of nationality. This meant, of course, that there was to be no discrimination with regard to the nationals of each of the Member States of the European Economic Community. This prohibition was across the board with regard to the objectives of the Treaty: “Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.” (Article 7).

 

In Title III of the Treaty on Free Movement of Persons, Services and Capital, this horizontally applicable principle is applied to those secured freedoms: no discrimination based on nationality in the freedom of movement of workers with regard to employment, remuneration and other conditions of work and employment (Article 48(2)); no restrictions on freedom to provide services can be applied on grounds of nationality (Article 65) and no restrictions on the movement of capital can be applied on grounds of nationality (Article 67).

 

Freedom of establishment was to be secured with the progressive removal of restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State. (Article 52). This freedom of establishment was to be extended to companies and firms which, for this purpose, were to be treated in the same way as natural persons who are nationals of Member States. (Article 58).

 

These are a few of the many instances in the Treaty of Rome where reference is made to “nationals of Member States” because nationality is at the very basis of the benefits of the citizens of each of the member states which together created the European Economic Community. Clearly even the structures of the EEC were based on the participation of persons who were nationals of the Member States. Thus, for example, in Article 157 with reference to the European Commission, “Only nationals of Member States may be members of the Commission”.

 

While this concept of nationality of a member state remained the connector to the rights and benefits which the creation of a common market was intended to address, in time, as the European Communities were merged and then were transformed into a European Union, a new concept emerged: that of a European citizenship distinct from, but linked to, the nationality of each member state. One can see this European citizenship as an assertion of shared identity and also as an evolution of the integration process of the European Union as it continues to wrestle between a “Europe of peoples” and a “Europe of states”.

 

 

European Citizenship

 

It was the Treaty of Maastricht entitled the Treaty on European Union (1992) that introduced the concept of EU Citizenship. The Treaty of Maastricht declares, in its Preamble that the Member States resolved to establish a citizenship common to nationals of their countries through the introduction of a citizenship of the Union in order

 

“to strengthen the protection of the rights and interests of the nationals of its Member States…” (Preamble; and then Title 1 Common Provisions Article B). It established a European citizenship that was automatically conferred on “Every person holding the nationality of a Member State”. Later, the Treaty of Amsterdam clarified that “Citizenship of the Union shall complement and not replace national citizenship.” (Article 9).

 

In addition to the existing rights of the citizens of the Member States, that predate it, this Treaty and the Treaty of Amsterdam which followed it, while asserting that such a Citizen of the Union has the enjoyment of the rights conferred by the Treaties in general, enlists a number of rights inter alia emanating from such European Citizenship –

 

(a) to move and reside freely within the territory of the Member States

(b) to vote and to stand as a candidate at municipal elections in the Member State in which he resides

(c) to vote and to stand as a candidate in elections to the European Parliament

(d) to be protected by the diplomatic or consular authorities of any Member State

(e) to petition the European Parliament and

(f) to apply to the European Ombudsman

(g) to write to the Institutions in any of the official languages of the EU and to receive an answer in that same language (Article 11) and

(h) to have access to European Parliament, Council and Commission documents (this latter right applicable also to any natural or legal person residing or having their registered office in a Member State) (Article 45).

 

These citizens’ rights are today firmly entrenched in the legal system of the European Union, as it continued to evolve with other subsequent treaties not least the Treaty of Lisbon including with the adoption and legal enforceability of the Charter of Fundamental Rights of the European Union.  The Treaty of Lisbon further stated that it observes “the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies” (Articled 1.12)) describing European Citizenship as “additional” (not “complementary” as in the Treaty of Amsterdam) to national citizenship.

 

Acquisition and Loss of European Citizenship

 

How do you acquire European citizenship? It is a citizenship that is additional to that of national citizenship of a member state of the European Union generated at the same time as that national citizenship. The Treaty on the functioning of the European Union, reflecting the statement in the Maastricht Treaty, states very clearly that “Every person holding the nationality of a Member State shall be a citizen of the Union”. (Article 20(1)).

 

Are their common European rules for acquisition and loss of citizenship? No because the rules for acquisition and loss of a national citizenship of the EU pertain solely and exclusively to the Member State and not to the European Union. Issues of citizenship have not been conferred on the European Union and as is clearly laid out in Article 5 of the Treaty on European Union, the EU acts only within the limits of the competences that the EU member states have conferred upon it by the Treaties. The Treaty on the Functioning of the European Union lays out the exclusive, shared and supporting competences very clearly in Articles 2-6.  As a result, the acquisition of citizenship is regulated exclusively by the law of the Member State conferring it.

 

If you are the holder of dual nationality, it is sufficient for one of those nationalities to be that of one of the Member States of the European Union to benefit from the freedoms

available to you as a European citizen.[1]   In summary, the judgement lays down as follows: “The provisions of Community law concerning freedom of establishment preclude a Member State from withholding that freedom from a national of another Member State who at the same time possesses the nationality of a non-member country, on the ground that the legislation of the host State deems him to be a national of the non-member country. Whenever a Member State, having due regard to Community law, has granted its nationality to a person, another Member State may not, by imposing an additional condition for its recognition, restrict the effects of the grant of that nationality with a view to the exercise of a fundamental freedom provided for in the Treaty, particularly since the consequence of allowing such a possibility would be that the class of persons to whom the Community rules on freedom of establishment were applied might vary from one Member State to another.”[2]

 

Therefore while reasserting that the acquisition and removal of citizenship is a matter for the Member State, the court case law includes the words “having due regard to EU law” in relation to such grant. In this regard, the Commission, in its period report on the effectiveness of European Citizenship, comments that in “interpreting this proviso in the Rottmann Case (Case C-135/08), 2 March 2010[3], the Court did not challenge the exclusive competence of Member States to determine who may become their national and thus a Union citizen. Rather, it imposed limits on their power to deprive[4] Union citizens of the rights attached to their Union citizenship status. In particular, it affirmed that, in respect of citizens of the Union, the exercise of Member States’ power to lay down rules for the acquisition and loss of nationality, in so far as it affects rights conferred and protected by the legal order of the Union, as is the case with a decision withdrawing naturalisation, is amenable to judicial review carried out in the light of EU law.”[5]

 

Furthermore, the motive for or method of your acquisition of the citizenship of a Member State, and consequently of the European Union, does not seem to arise as an issue with regard to the benefits arising therefrom. In Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department the Court reiterated that “Under international law, it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality and it is not permissible for a Member State to restrict the effects of the grant of the nationality of another Member State by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty.”[6]

 

Interestingly in Case C-145/04 Kingdom of Spain v United Kingdom of Great Britain and Northern Ireland, the Court exonerated the UK from breach of EU law by granting Commonwealth citizens resident in Gibraltar who are not EU nationals the right to vote and stand as candidates to the European Parliament stating that the current state of Community law, the definition of the persons entitled to vote and to stand as a candidate in elections to the European Parliament falls within the competence of each Member State in compliance with Community law which does not preclude the Member States from granting that right to vote and to stand as a candidate to certain persons who have close links to them, other than their own nationals or citizens of the Union resident in their territory. In addition, since the number of representatives elected in each Member State is laid down by EU law and since elections to the European Parliament are held in each Member State for the representatives to be elected in that State, an extension by a Member State of the right to vote at those elections to persons other than its own nationals or other than citizens of the Union resident in its territory affects only the choice of the representatives elected in that Member State and has no effect either on the choice or on the number of representatives elected in the other Member States.[7]

 

Similar reasoning, in terms of national regulation of the issue, was used in Case C-300/04 M.G. Eman and O.B. Sevinger v College van burgemeester en wethouders van Den Haag 12 September 2006.  where residents in an overseas territory of the Netherlands (Aruba) were precluded from voting in European elections because they failed to meet the test of residence in the Netherlands. The Court did not find breach of EU law stating that “In the current state of Community law, the definition of the persons entitled to vote and to stand for election to the European Parliament falls within the competence of each Member State in compliance with Community law”. Consequently, the Court said, a Member State may require meeting a criterion of residence in the territory in which the elections are held as a condition of the right to vote and to stand as a candidate in elections to the European Parliament.

 

Still there are situations where the value of European Citizenship becomes exponential, as was the recent case with the Court Order of the 6^th of September 2017 given in Case C‑473/15, Peter Schotthöfer & Florian Steiner GbR v Eugen Adelsmayr on request for a preliminary ruling.

 

The facts of the case related to an Austrian national and resident Mr Adelsmayr, a physician who, while working in the United Arab Emirates, had been blamed for the death of a patient he was treating who had died following an operation in February 2009. An investigation was carried out which made a finding of murder and manslaughter leading to proceedings in 2011 in Dubai where the public prosecution service requested the death penalty for Mr Adelsmayr. When Mr Adelsmayr left the UAE in 2012, he was sentenced in absentia to life imprisonment in interim proceedings which could be resumed at any time and in which he would still be liable to the death penalty. In Austria, where similar proceedings had been initiated, in 2014, the Austrian Public Prosecutor’s Office had discontinued similar proceeding against Mr Adelsmayr. In the reference to the Court of Justice of the European Union, Mr Adelsmayr was pleading the application of Charter of Fundamental Rights of the European Union. He had declined to attend a conference in Germany because he was unsure whether by going there he could have risked being turned over to the authorities of the UAE.

 

The Court, quoting Article 19 (2) of the Charter of Fundamental Rights of the European Union[8], ruled very clearly that “a request for extradition originating from a third country concerning a European Union citizen who, in exercising his freedom of movement, leaves his Member State of origin to reside in the territory of another Member State, must be rejected by the latter Member State where that citizen runs a serious risk of being subjected to the death penalty in the event of extradition.”

 

Work in Progress

 

There is no doubt that the development of a European citizenship, additional and parallel to national citizenship in the European Union is also an important assertion of a distinct European identity beyond that of the national state. Thus, for example, German and European, Italian and European, Maltese and European, dual identities which also translate into national and European citizenships.

 

Equally, there is no doubt that European citizenship carries with it benefits and rights which are increasingly important. Indeed, as we have seen above, in some cases, it can be even life-saving!

 

European citizenship is a cornerstone of Europeanness, complementing the day-to-day usefulness to the common citizen of Europe in crossing borders seamlessly within the Schengen area, in using a common currency, the Euro, in different member states, and, now, lately, in communicating across borders without the burden of roaming charges.

 

European Citizenship is work in progress. The Treaties themselves have an internal mechanism to keep the regulation, and effectiveness, of EU Citizenship under review: Article 25 of the Treaty on the Functioning of the European Union (TFEU) requires the Commission to report to the European Parliament, the Council and the European Economic and Social Committee every three years on the application of the provisions of Part Two of the Treaty dealing with Non-Discrimination and Citizenship of the Union.[9] The legal regulation of, and benefits arising from, European citizenship is an acquis in evolution and we shall certainly see greater developments, legislatively and in case-law, in the years to come.

 

Author: Dr Michael Frendo K.O.M., LL.M.(Exon.), LL.D.(Melit.), Frendo Advisory, Valletta

 

 

[1] Case C-396/90 Mario Vicente Micheletti and others v. Delegación del Gobierno en Cantabria, Judgment of the Court of 7 July 1992.

[2] ibid. The judgment can be viewed at https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:61990CJ0369&from=EN

[3] Case C-135/08, Janko Rottmann v Freistaat Bayern – Reference for a preliminary ruling under Article 234 EC from the Bundesverwaltungsgericht (Germany).

[4] Emphasis mine

[5] Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions under Article 25, TFEU. On progress towards effective EU Citizenship 2011-2013, Brussels, 8.5.2013 COM(2013) 270 final

[6] Case C-200/02 Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department, 19 October 2004 which can be viewed on https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62002CJ0200&from=EN

[7] https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62004CJ0145&rid=7.

[8] “2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”

[9] See supra at paragraph 11.

 

Citizenship without a State

 

Although the EU is not a state, it boasts a citizenship like many others, established more than 20 years ago by the Treaty of Maastricht. This citizenship allows the Union to distinguish between ‘European citizens’ and foreigners, termed ‘third-country nationals’ in contemporary Eurospeak. By law, every national of each of the EU’s (still) 28 Member States is a citizen of the Union.

EU citizens enjoy an array of crucially important rights, including residence, work and non-discrimination in the territory of all the members of the Union, as well as some political rights, including participation in European Parliament elections and municipal elections in any of the Member States where they chose to reside. The only exception from the free movement of workers within the EU territory is related to the transitional period applied to Croats by five EU Member States (Austria, Malta, Netherlands, Slovenia and the UK). EU Member States are allowed under EU law to apply restrictions to workers from new Member States for a maximum period of seven years, which started ticking in the case of Croatia on 1 July 2013. Croatia applies reciprocal measures and citizens from the above five EU Member States cannot freely settle in the newest Member State yet.

 

Effects beyond the European Union

 

EU citizens have same freedom of movement rights in other EEA countries  ̶  primarily in Iceland and Norway (while there is a cap on the number of people given residency a year in Liechtenstein), as well as in Switzerland and Georgia. The only exception from the free movement of workers rule applied by Switzerland concerns Croats who need a valid work permit before starting their employment in the country. While Switzerland reintroduced quotas for Bulgarian and Romanian workers in 2017 this decision does not affect their short term (up to 12 months) residence and work permits. Applying a very liberal approach to citizens of nearly 100 states Georgia is open to all EU citizens who wish to settle in the country up to one year.

As the biggest economy in the world, boasting very high levels of Human Development, the EU can legitimately be expected to be home to the best nationalities in the world – and it is. EU citizenship has steadily occupied one of the leading places among the nationalities of Very High Quality in the Quality of Nationality Index (QNI) ranking, consistently placed right alongside US citizenship and above those of Australia, Canada and Japan. Only citizenships of the European Economic Area – countries not included in the EU but enjoying full access to the EU territory for settlement and work without any prior authorizations – score higher than the US and EU citizenships. Indeed, were the individual EU nationalities excluded from the QNI (since these are component parts of EU citizenship, just as the citizenships of, say, Utah and Vermont are parts of the normative package of US citizenship[1]), EU citizenship would then end up in the top 10 of the world, right below Norway, Iceland, Switzerland and Liechtenstein and the US, steadily occupying the sixth place in the world.

 

Mutual Consular Support

 

Europeans, except Croats, travel on standardized EU-model burgundy-colored passports, which display all the essential information in the 24 official languages of the EU and contain an inscription ‘The European Union’ in the respective language right above the name of the Union Member State that issued the passport.

Unlike other international organizations around the world which mandate their members to issue passports which look similar, such as CARICOM, the EU ones are actually a sign of a robust legal status hiding behind the burgundy design. While the internal EU rights of the holders of such passports are very far-reaching, as mentioned above, the status of EU citizenship is also of crucial significance externally. Of importance here is not only the right that EU citizens enjoy within the EU, but also outside the EU, where citizens have the right to receive protection and services from the consulates of any EU Member State in countries where their own Union Member State of nationality is not represented. For instance, if a Maltese national loses a passport in Gabon, the UK consulate will issue a replacement document to enable return to the EU. It goes without saying that this right is of huge importance, in particular, for EU citizens coming from the small Member States, which cannot boast large networks of diplomatic and consular offices worldwide. The EU citizenship right to receive protection abroad will thus be of much greater importance for a Maltese or Lithuanian EU national, than for a German or a Pole.

The importance of the status goes much further. The majority of EU Member States agreed that the Union, not the individual states, will be responsible for the visa regime and visa-free arrangements applicable to foreigners coming to the EU. This has far-reaching implications: the Union is absolutely prohibited by its own law from tolerating any discrimination between its own citizens travelling on documents issued by different Member States – in the context of visa-free entry, to all the countries in the world enjoying visa-free access to Europe.

The law is crystal clear: any country whose citizens enjoy visa-free travel to the EU which treats EU passports issued by different Member States differently will see the visa-free regime granted to it revoked. In other words, if Canada allows Germans in visa-free but asks a Czech or a Romanian to apply for a visa, the EU is obliged by its own law to introduce visas for all Canadians travelling anywhere in the EU, in an effort to deal with such discrimination. Only one country in the world refused to cooperate with the EU on this point: the US, while Canada and Australia – to provide just two examples – changed their visa regimes to preserve visa-free access to the EU for their nationals. The dispute with the US, which currently discriminates against EU passports issued by Bulgaria, Croatia, Cyprus, Poland and Romania, not allowing the holders of these documents to enter the US territory on ESTA, is ongoing. The worst case scenario here, as the European Parliament concluded in early 2017, is the introduction of entry visas for US citizens for travel to any EU Member States – a move which will undoubtedly affect the quality of both EU and US citizenships sharply to their detriment.

 

Quality of EU citizenship

 

All in all, the QNI makes it absolutely clear that the quality of EU and US nationalities has consistently remained at a relatively similar, very high level. Importantly, while being attached to extremely important economies, both nationalities enjoy a lot of preferential treatment around the world through asymmetrical travel access for short-term tourist and business travel: just like the Americans, Europeans are not required to obtain visas in advance to visit the vast majority of the countries in the world, even if some discrepancies can be found here between the two nationalities: US citizens need visas to travel to Iran and Brazil, for instance, while these destinations are visa-free for Europeans. Where the EU and US are similar is that many countries around the world whose own citizens cannot visit the US or the Schengen Area of the EU without a visa, would not apply reciprocity to EU and US citizens.

The last issue to mention in the context of EU citizenship are the implications of its loss for the state withdrawing from the Union. ‘Hard Brexit’ will land the UK with a nationality which does not bestow settlement and work rights in leading EU Member States, in terms of HDI and Economic Strength, thus overwhelmingly impairing the quality of UK nationality. Research shows that such an impaired UK nationality – even if we presume no economic loss to the UK as a result of leaving the EU and thus uniquely focus on the external rather than internal components of nationality quality – will be in a free fall in terms of its quality, losing its value very sharply, and by far exceeding the losses experienced by the countries in the midst of bitter political and armed conflicts, as well as divided societies, whose nationalities are at the forefront of failing to perform, such as the Syrian, Libyan and Ukrainian nationalities.

This is a sobering facts-based warning for Ms. May, which is no doubt known to the populists in power in the UK very well. The UK is about to establish a world record in terms of profoundly undermining the quality of its nationality without going through any violent conflict, falling (in the QNI) from the elite group of Extremely High Quality nationalities to the High Quality group, changing its neighbors in the ranking from the likes of Switzerland and Germany to the likes of China and the Russian Federation. The moral is simple: EU citizenship is an extremely valuable resource and getting rid of it – crippling citizens’ horizon of opportunities – should not be taken lightly.

 

Author: Prof Dr Dimitry Kochenov, Faculty of Law, University of Groningen, The Netherlands

 

[1] The score of the citizenship of the EU has been updated significantly in this edition, to ensure that this citizenship does not benefit at all from the intra-EU travel and settlement rights, thus putting it on par with any other federation in the world.