A legal case for retaining EU citizenship?

It appears to me that, as a result of Brexit, the arbitrary deprivation of citizenship of the European Union would be against treaty obligations and hence illegal, and also against the Universal Declaration of Human Rights. Should EU citizens lose their status and rights as EU citizens as a result of Brexit, it could open up the UK and the EU to legal cases resulting from that Arbitrary Deprivation of citizenship. I have already heard some discussion about such cases being brought against both the UK and EU if people lose their citizenship.

Citzenship is about rights, obligations and identity. The first two have potentially legal and physical implications whilst the third has psychological implications, but nevertheless should not be ignored. I believe the EU is moving in the right direction with the proposals for Associate Citizenship proposed by Charles Goerens MEP and Guy Verhostadt MEP. There are a few potential problems with that proposal. However, it addresses the core issue of retaining citizenship in that representation and taxation are inextricably linked.

Who is affected?

Although all EU citizens are going to be affected by Brexit in some way there are 5 broad categories of EU citizens who will be very significantly affected. For the first two categories this affects their lives very deeply possibly forcing them to move to a country they have no desire to live in.

1. Non British EU citizens currently living in the UK
2. British EU citizens currently living in other EU countries
   a. Those who currently have permanent residency for that country
   b. Those for whom their residency is exclusively based upon their EU citizenship 
3. British EU citizens currently living in the UK and planning to live in other EU countries
4. British EU citizens currently living in other non EU countries
5. British EU citizens currently living in the UK
   a. Those that wish to retain their EU citizenship, and believe in the European project
   b. Those who wish to separate from the EU project and have no wish to retain EU citizenship

Note: I use ‘living in’ not to differentiate between permanent or temporary residency or any other complicated legal definition. For me the answer to the question ‘Where is your home?’ is the core place where you live.

There are two different parliaments related to these issues: The UK Parliament and the EU Parliament. The UK Parliament has exclusive control over category 1 - what will happen to non British EU Citizens currently living in the UK.  The EU Parliament has control over category 2-5, unless the UK decides to withdraw from Brexit, which is what I hope will happen, but sadly don’t expect it.

There are two words I want to clarify: The word nationality and the word citizenship. (see link)

Citizenship is a legal status in a political institution such as a city or a state. The relationship between a citizen and the institution that confers this status is formal, and in contemporary liberal-democratic models includes both a set of rights that the citizen possesses by virtue of this relationship, and a set of obligations or duties that they owe to that institution and their fellow citizens in return. 

Nationality, on the other hand, denotes to the country where an individual has been born. Nationality is got through inheritance from his/her parents or it be called a natural phenomenon. On the other hand an Individual becomes a citizen of a country only when he/she is accepted into that country's political framework through legal terms. No one will be able to change his/her "Nationality" but one can have different "Citizenship" at a time.

These two terms are important because sometimes they are used interchangeably and sometimes because people confuse the two in their desires.

The background to EU citizenship

The EU grew out of a post second world war desire for peace in Europe, and developed in stages through the European Coal and Steel Community, the Council of Europe, the European Economic Community and finally the European Union. There are four core principles of the European Union: Free movement of goods, services, capital and people. The EU came about through a number of treaties in which EU citizenship was created as a legal state. (see link)

• Any person who holds the nationality of an EU country is automatically also an EU citizen. EU citizenship is additional to and does not replace national citizenship. It is for each EU country to lay down the conditions for the acquisition and loss of nationality of that country.
• Citizenship of the Union is conferred directly on every EU citizen by the Treaty on the Functioning of the EU.

Although the now famous Article 50 of the Lisbon Treaty denotes a mechanism for which a country may withdraw or leave the EU, there is no method stated for depriving, arbitrarily or otherwise, an EU citizen of their citizenship, though some might argue it is implied. The Treaty of Maastricht on European Union explains citizenship thus:

The Treaty on European Union (TEU) represents a new stage in European integration since it opens the way to political integration. It creates a European Union consisting of three pillars: the European Communities, Common Foreign and Security Policy (CFSP), and police and judicial cooperation in criminal matters (JHA). The Treaty introduces the concept of European citizenship, reinforces the powers of the European Parliament and launches economic and monetary union (EMU). Besides, the EEC becomes the European Community (EC). 

CITIZENSHIP

One of the major innovations established by the Treaty is the creation of European citizenship over and above national citizenship. Every citizen who is a national of a Member State is also a citizen of the Union. This citizenship vests new rights in Europeans, viz.:
• the right to circulate and reside freely in the Community;
• the right to vote and to stand as a candidate for European and municipal elections in the State in which he or she resides;
• the right to protection by the diplomatic or consular authorities of a Member State other than the citizen's Member State of origin on the territory of a third country in which the state of origin is not represented;
• the right to petition the European Parliament and to submit a complaint to the Ombudsman.

Note that European citizenship is over and above national citizenship, not merely an inherrent part of national citizenship. The Lisbon Treaty Treaty of the European Union (TEU) explains citizenship thus:

RESOLVED to establish a citizenship common to nationals of their countries, 

to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union; 

Article 8 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby..

Note the differing use of nationality (place where born) and citizenship (legal status).

International aspects of citizenship

The Office of the United Nations High Commissioner for Human Rights expresses the rights of nationality as being a basic human right. Because nationality can be understood to be the place where you are born, and because some countries allow everyone born there to be a citizen and some do not allow this, there is ambiguity as to the meaning of nationality in the Universal Declaration of Human Rights. Reading it I believe the word nationality can be replaced with citizenship and it actually make more sense.

The Universal Declaration of Human Rights was voted at UN General Assembly 68 years ago on 10 December 1948.  8 current member states of the EU voted in favour of it and three abstained.

Here is what the Universal Declaration of Human Rights states as far as nationality/citizenship. (see link)

The Right to a Nationality

The right to a nationality is a fundamental human right. It implies the right of each individual to acquire, change and retain a nationality. 

International human rights law provides that the right of States to decide who their nationals are is not absolute and, in particular, States must comply with their human rights obligations concerning the granting and loss of nationality.

Arbitrary Deprivation of Nationality

The right to retain a nationality corresponds to the prohibition of arbitrary deprivation of nationality. Arbitrary deprivation of nationality, therefore, effectively places the affected persons in a more disadvantaged situation concerning the enjoyment of their human rights because some of these rights may be subjected to lawful limitations that otherwise would not apply, but also because these persons are placed in a situation of increased vulnerability to human rights violations.

Looking at the paragraph related to Deprivation of Nationality it’s clear that this really means citizenship rather than place where you are born, since you cannot actually deprive a person of being born after the event! So the question that needs consideration is whether the UK or EU would be arbitrarily depriving us of EU citizenship when/if Brexit happens.

Arbitrary Deprivation of Citizenship

Nobody will be left as a stateless person, of which the UNHCR believes there to be approximately 10 million worldwide, as a result of Brexit. However, to be forced into a position where your primary citizenship is withdrawn and hence you are obligated to live in a location against your will does appear to fit with the implications of arbitrary deprivation of citizenship. This would potentially allow claims against the UK and EU governments. I know that some people are considering filing for damages against the UK government if Brexit goes ahead.

Arbitrary deprivation of EU citizenship would place the persons in a significantly more disadvantaged situation concerning the enjoyment of their previously held rights because those rights would be subjected to lawful limitations that would not otherwise apply. This particularly applies to those in category 2b and 3 listed above.  I am acutely aware of this since for 12 years I have been in category 2b and have lived outside the UK for 21 years, which is more than half my adult life.

Brexit and the will of the people

The UK held a referendum on 23 June 2016. The law which provided for that stated clearly the referendum was advisory not legally binding. This came about because for decades a group of people within the UK are, for various reasons, anti-EU. They have made themselves heard and are very vocal. The veracity, or otherwise, of their claims is irrelevant but that they have been pressuring the UK government and EU has been clearly demonstrated.

UKIP politicians managed to get elected as MEPs and made their voice heard in both discourteous and uncivil ways, disrupting the proceedings. It's clear that some people not only wish to see the UK withdraw from the EU but want to see the destruction of the EU. For those people who are EU citizens and British nationals this is appalling and disenfranchises them from UK society.

It therefore might be better for the EU for the UK to leave the Union and go it's own way. The problem is that UK nationals are EU citizens and although some wish to give up that citizenship a significant number, a number greater than the population of the Netherlands and approximately the same size as the total population of nine of the EU states, wishes to remain EU citizens. It is therefore incumbent upon the EU government to protect the wishes of those people against their national government. Indeed this is one of the reasons we feel safe as EU citizens knowing we are protected against spurious national governments. The whole aim of peace is Europe is at the heart of the EU.

The way forward: Associate EU citizenship or... ?

The suggestion of Associate EU citizenship appears to resolve many of the issues while at the same time allowing the UK to leave the Union and thus no longer be a thorn in the side of the EU. It is not without its complications.

One of the problems relates to taxation and representation. There is suggestion that there should be an annual fee for this citizenship. For those who are not fiscally resident in an EU country that makes sense, but for those fiscally resident within an EU state and who are taxed within that state, then they are potentially being double taxed. If someone changes fiscal residency then what happens then?

The other question that hasn't been resolved is relating to identity. To some degree a passport gives you identity, it demonstrates you really are a citizen or subject of the country concerned. Will Associate EU citizenship give me an EU passport? Currently EU passports are issued by member states. Personally I would like an EU passport to demonstrate that I am truly European.

How does the representation work for Associate EU citizens, will they be treated as a 'virtual country' with their own MEPs and council member?

There have been some suggestions that the UK might try to block or veto this proposal. I cannot see why they would do this except by those people who believe in the destruction of the EU.

One alternative or additional option would be to allow all people in category 2 the option of instant, fast tracked citizenship of the country in which they live. This would apply to British EU citizens currently living in other EU countries, both those who currently have permanent residency for that country and those for whom their residency is exclusively based upon their EU citizenship. A problem with this would be some countries do not allow dual citizenship and since pension rights are frequently attached to citizenship this could create a problem. For those countries that do allow dual citizenship, for example Cyprus, this would be an excellent solution and one I would almost certainly take up.

So I'm watching all these developments carefully, hoping that I will not be involved in having to take legal action for arbitrary deprivation of citizenship, hoping that I will not be forced to move to the UK, a country I do not wish to live in, and hoping that peace will reign over the Europe I see as my home.