stevepeersGuy Verhofstadt has mooted the idea of ‘associate citizenship’ for British citizens who wanted to keep it post-Brexit. Steve Peers says Verhofstadt not only lacks the authority to negotiate on this issue, but the chances of securing agreement from all other member states are pretty remote. He stands accused of raising false hopes. Nonetheless, were the EU to offer individual Britons such a deal, it would be very hard for the UK government to stop them accepting it.
The idea of ‘associate citizenship’ for UK citizens in the EU post-Brexit has been much discussed in recent weeks. Presumably this would be offered not only to UK citizens in EU, but to other UK citizens too. It was first suggested by a Luxembourg MEP, and since then has been promoted by Guy Verhofstadt, who represents the European Parliament (EP) during Brexit talks.
pro-EU protestors

Pro-EU protestors in London, December 2016. Photo: Steve Eason via a CC-BY-NC-SA 2.0 licence

There’s a lot of unpicking to do here. First of all, the UK press has described Verhofstadt as an ‘EU negotiator’ who will make this idea part of his ‘negotiating mandate’. But neither part of this statement is true. Verhofstadt does not ‘negotiate’ on behalf of the entire EU; he may well not even end up ‘negotiating’ on behalf of the EP. Article 50 TEU leaves it up to the EU Council (Member States’ ministers) to decide who negotiates, and they usually choose to designate the Commission (subject to a negotiating mandate from the Council) to negotiate with non-EU States. The Council might choose to designate itself as negotiator. It’s entirely unprecedented for it to designate the EP as negotiator, and there’s no reason to think it would start now.

 

The actual role for the EP is its power of consent (veto) over the final Article 50 treaty, as discussed further by Darren Harvey here. So Verhofstadt – if he has support from a majority of MEPs – could threaten a veto at the end of the process unless one of the EP’s demands are met. That’s significant, but not the same thing as being a negotiator.

The second big issue to unpick is the status of EU citizenship. Whenever it’s mentioned, a phalanx of keyboard warriors take to social media to argue ‘There’s no such thing as EU citizenship, because the EU is not a State’. This is clearly false, as Article 9 TEU shows:

In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

So EU citizenship exists despite the EU not being a State (note that the ECJ has confirmed that the EU is not a State). However, that citizenship can only be obtained by means of holding citizenship of an EU Member State. It therefore seems obvious that UK citizens will lose EU citizenship after Brexit (unless they have dual nationality of an EU Member State), although some contest this interpretation.

It follows that ‘associate citizenship’ for UK citizens after Brexit is a new idea that would have to be established by way of Treaty amendment, entailing ratification by all Member States. Another route to this end would be for some or all Member States to agree formally or informally to offer their citizenship to UK citizens. Either route would give the full panoply of EU citizenship rights (free movement, voting, consular representation) to UK citizens. But equally either scenario sounds incredibly fanciful.

A simpler way forward is to aim to retain only some of the rights of EU citizenship for UK citizens – namely the free movement rights. Most of these rights could indeed be retained by adoption of an EU immigration law extending them to UK citizens, perhaps by means of a special ‘ex-EU’ status for all UK citizens, not just those living in the EU on Brexit Day. By way of exception, an EU immigration law could not address the issue of UK citizens entering the EU post-Brexit to work, since Article 79(5) TFEU leaves that issue up to Member States. However, a group of Member States could agree common rules on that between themselves.

Thirdly, as noted already, there’s nothing to ‘negotiate’ here – at least between the EU and the UK. All these scenarios are unilateral – the EU and its Member States can decide on what they want to offer to UK citizens (if anything) without approval from the UK – just as some UK citizens already have (or can obtain) dual citizenship of Ireland or other Member States. Of course, Member States may be unwilling to go down this road without some form of reciprocity from the UK, and the UK might be unwilling to offer that; but that is a purely political matter.

Next, what role does Verhofstadt actually have as a ‘negotiator’ here? Not much. Since any unilateral decision by the EU would not be negotiated with the UK (and Verhofstadt will not be ‘negotiating’ the Article 50 deal anyway), and the EP cannot directly force the other EU institutions or Member States to consider the idea of associate citizenship (in whatever form), there would be no explicit role for the EP unless the Commission tabled EU legislation. So it’s not clear why Verhofstadt makes a big fuss about this issue.

Maybe he simply wants the attention. That’s an understandable trait in a politician. However, there’s something not only cynical, but a little bit cruel, in raising false hopes. Unless Verhofstadt clarifies his objective and presents a plan for achieving it, he risks a backlash.

Finally, at least a few Leave supporters seem upset by this associate EU citizenship idea – although conversely some Leavers seem perfectly relaxed about it. But frankly, so what? If the EU made a unilateral offer to individual UK citizens, how could the UK government stop them accepting it? Even if the UK banned dual citizenship in general, or dual EU/UK citizenship in particular, the EU could still offer EU citizenship to UK citizens who were willing to denounce their UK citizenship to obtain it. If the UK then passed a law banning people from denouncing their UK citizenship to this end, there is no legal reason why the EU should recognise the effect of that law. If the UK then persecuted anyone who purported to denounce UK citizenship, those people could seek asylum in the EU.

Any Leavers who are really angry about the idea of UK citizens getting EU citizenship would be better off instead spending some time trying to understand why some of their fellow UK citizens value their EU citizenship so highly – and why all UK citizens should honour this country’s long history of respecting those with different points of view.

This post represents the views of the author and not those of the LSE. It was first published at the EU Law Analysis blog.
Steve Peers is Professor of EU Law & Human Rights Law, University of Essex.
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