Brexit raised British people's concerns about their immigration status in Europe after March 2019. 1.3 million of British citizens currently settled in other EU member states but not citizens of those countries, might need to ensure their immigration status before exit. According to Article 20 of the Treaty on the Functioning of the European Union, Union Citizenship is granted to all citizens of member states. The dilemma in this regard is: can Union Citizenship - also known as free movement rights - be taken away after having been granted?
The Court of Justice of the European Union has been asked by a district judge in Amsterdam, in order to shed more light on this matter.
The extent of this question is remarkable. As a matter of fact, if Union Citizenship cannot be taken away once granted, every British citizen would continue to be an Union Citizen after 29th March 2019. In other words, while British citizens would be able to move visa-free through Europe and settle in EEA member states after Brexit, reciprocal right will not be granted to EEA nationals in order to enter and settle in the UK.
Within this confusing scenario it is essential to refer to the Legal Provisions in order to have clear understanding. In particular, we have to consider that Article 20 of the Treaty on the Functioning of the European Union provides as follows:
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties…
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.
From a first analysis, the Treaty does not seems to envisage the case of a Member State leaving the Union. That leads to think that the Treaty does not state that Union citizenship should be taken away, once granted. Nevertheless, having a closer look, Article 2 of the Directive 2004/38/EC states that: “Union citizen” means any person having the nationality of a Member State;
This could be the key to solve the puzzle. As soon as the UK will leave the EU, British citizens will no longer be nationals of a member state. In accordance, they will no longer be considered as Union citizens.
Another argument is that - if Union citizenship will be kept - UK citizens would get free movement, while EU citizens would not. That would sound discriminatory against EEA nationals living in the UK.
Compliance and common sense should be balanced and transparency prioritised as a matter of urgency in order to be prepared.