Brexit and citizenship II: Associate EU citizenship
Why would the EU at all consider unilaterally offering a new status to British (or other former EU) citizens without there being any reciprocal status or legal protection for EU citizens living in the UK (or any other exiting Member State)?
As stated in a previous blog (“Brexit and Citizenship I: Retention of EU Citizenship”) politicians, non-governmental organisations as well as academics have made proposals on how to protect the rights of in particular UK nationals living in an EU-27 Member State post-Brexit. The most interesting one among the suggested proposals are those calling for the introduction of an associate EU citizenship. The original idea, if I am correct, stems from the mind of the European Parliament’s Brexit coordinator, Guy Verhofstadt. In December 2016, Verhofstadt suggested a form of EU ‘associate citizenship’ status that would allow individuals to “keep free movement to live and work across the EU, as well as a vote in European Parliament elections”. MEP colleague Goerens supported the idea and added that “[f]ollowing the reciprocal principle of ‘no taxation without representation’, these associate citizens should pay an annual membership fee directly into the EU budget.”
The idea of an associate EU citizenship has proven to be controversial, with some indeed advocating it and others (strongly) opposing it. Discussions on this status are not always easy to understand, partly because it is not truly clear what associate European citizenship would actually entail. To be sure, associate European citizenship would differ from EU citizenship itself. Those who favour it do not seem to call for a retention of the status established by Article 20 TFEU but rather for the creation of a new status. Further, it would be a status to be granted or offered to nationals of former Member States and not, for example, to third country nationals who have acquired long-term residence status. Third, in terms of substance, the new status would encompass the most important EU citizenship rights: free movement rights (presumably including equal treatment) and active voting rights in European Parliament elections.
Numerous aspects, however, still remain unclear. For example, will paying a fee into the EU budget be a requirement, as MEP Goerens suggested? The issue certainly is relevant for the legitimacy of Associate citizenship and reminds us of the ‘citizenship-by-investment’ of Malta, and a few other Member States. The Maltese programme has proven quite controversial inter alia because of a free rider problem. By buying Maltese citizenship, a country with which they may have no genuine link, third country nationals could acquire EU citizenship and, subsequently, move to other Member States, which otherwise would never have admitted them. This free rider problem would not exist if one were to introduce associate citizenship at EU level. Yet, is it desirable to ask a price for a citizenship-like status, to commercialise it? Will it be a new status based on a genuine link that its holders have with the EU or one of its Member States, or will associate EU citizenship be a tradable good?
A next question that then arises is who would be the beneficiaries of this new associated citizenship? Concretely in the case of Brexit: will only the Brits who have moved to another Member State and have lived there for a given period of time be given the right or option to become associate EU citizens, or also those who have never done so and find themselves in ‘purely internal British situation’? The answer to this question is relevant because it triggers the subsequent question of what the actual aim of associate citizenship would be: is it just a means to ensure the continuation of rights for nationals of exiting Member States living in other EU Member States, or does it have an own intrinsic or more deeply motivated aim? If the former is the case, why would UK nationals who have never settled across the Channel still need to have a right to vote for the EP? Those who wish to include EP election rights for this category of UK nationals must have something else or more in mind. Yet, what exactly? Even though the term ‘associate citizenship’ is used, is it not that this is meant as a covert way to make sure that Brits, and potential other future ex-Member State nationals, can nonetheless retain EU citizenship?
It is of course perfectly possible that advocates of associate European citizenship themselves do not exactly know what they are proposing or what the implications of their proposal might be. As noble as their motives may be, if these advocates have more in mind than merely freezing the legal status of UK nationals living in ‘Europe’, one must be cautious. Critical questions must be addressed. If this envisaged status is meant as a status separate from EU citizenship, yet encompassing the same or very similar rights as the latter, does it not undermine EU citizenship? Even if it were established that the EU can formally confer all rights that it offers to its own citizens to third country nationals, does the very existence of EU citizenship not command restrictions? Further, and recalling what has previously been said about Article 50 TEU, why is there at all a need for the EU to consider introducing a new status to the benefit of people who have collectively, and fully in accordance with their own internal constitutional norms and procedures, decided to step out of the Union and decided to give up their EU citizenship? Apparently, the majority who voted in favour of Brexit did not consider EU citizenship important enough. And whatever others may think of this choice, the choice to leave the EU made was entirely legally. Those who voted to remain simply have to accept that they, as a result of UK constitutional rules, lost the battle and, with that, EU citizenship and all rights flowing from this status. In fact, by offering one-sidedly associate citizenship to those UK nationals who wish to remain part of the European integration project, the EU is meddling in the internal affairs of a former Member State in which it arguably should not meddle.
Finally, and perhaps most importantly, why would the EU at all consider unilaterally offering a new status to British (or other former EU) citizens without there being any reciprocal status or legal protection for EU citizens living in the UK (or any other exiting Member State)? The number of EU citizens in the UK far exceeds the number of UK nationals living in ‘Europe’. As noble as it may be to show legal and political compassion with UK nationals in EU-27 Member States, the EU’s main commitment does not, or at least should not, lie with them but rather with EU citizens living in the UK. The EU should not give in to the pressure of all those who – often quite annoyingly – place so much emphasis on the negative implications of Brexit for UK nationals living in the EU without giving equal (if any at all) attention to the rights and interests of EU citizens residing in the UK. Reciprocity is a must. Without it, introducing associate European citizenship is an idea that is doomed to be rejected by EU citizens.
| Read part 1 of Brexit and citizenship
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