Will Britons living in other EU member states have the opportunity to naturalise? Dora Kostakopoulou says this would be a potentially fraught and divisive policy option, particularly for those living in states that do not allow joint citizenship. Instead, she argues, we should reconsider the legitimacy of a narrow majority vote that deprived millions of EU citizens, UK and non-UK, of fundamental rights and freedoms.
Would naturalisation in their country of residence be a suitable policy option for UK nationals who are living in EU member states? In answering the question, I make a basic assumption: that the principle of majority rule in public policy formation and law making is only one of the main conditions of democracy. The other two are respect for the rule of law and the protection of fundamental rights and freedoms, which are often constitutionally enshrined. In fact, the latter two conditions guide, shape and circumscribe electoral majoritarianism.
In this respect, making the latter the only and/or the overriding consideration makes it harder, not easier, to provide an adequate justification that a decision or a policy is democratic. To put it differently, the principle of majority rule does not have an unlimited scope in constitutional democracies: it excludes the power to alter rights and fundamental freedoms, or to deprive numerical minorities of their rights.
This thinking applies to the Leave vote in the EU referendum outcome, and the Prime Minister’s decision to make it an authoritative mandate for Brexit. For the (slim) majority’s preference for the UK to ‘take back control’ – whatever this might mean – and thus leave the EU was not properly weighed against the loss of citizenship and residence rights by millions of EU citizens. Nor was the possible diminution in rights protection for all UK citizens and residents post-Brexit at the forefront of any concerns before and after the referendum.
Leaving aside my uneasiness about the existence of a democratic deficit if a slim majority can make authoritative decisions which can injure significantly a portion of the community and deprive it of their rights, including citizenship rights, by referendums – thereby evading the channels of accountability before representative assemblies – I would like to counsel caution to those who think that a gesture of allowing the naturalisation of all those citizens affected by Brexit could provide an adequate compensatory mechanism for the cancellation of EU citizenship and residency rights.
First, naturalisation laws in the 28 Member States vary, which would result in divergence and inequalities in the treatment of EU citizens. So do processing times and naturalisation rates across the Union.
Secondly, in those member states that do not permit dual or multiple nationality, the voluntary acquisition of the nationality of that state will result in the loss of their original member state nationality, thereby placing certain EU citizens in an invidious position. In an interconnected and mobile world, EU citizens tend to maintain their attachment to their country of origin where they have close family members and/or property. Interestingly, in the EU, 22 member states permit multiple nationality, while Denmark, Norway, Estonia and Lithuania require the renunciation of the former nationality upon the voluntary acquisition of their nationalities – without exceptions.
Thirdly, it would be difficult to justify the conversion of EU citizens into nationals through tests, classes, oaths and citizenship ceremonies. The new taxonomy of citizenship consisting of the ‘ins’ and ‘outs’ will be seen to be an unnecessary and costly imposition on all those citizens affected by Brexit who have been incorporated into host societies, and have been treated as rightful participants until now.
It is also likely to damage societal relations and create narratives of ‘othering’, since current members would be seen as unworthy of membership unless they naturalise. Creating hierarchical relations which treat existing members having a secure residence and free movement rights as non-members – and thus as inferior – entails a denial of recognition and respect. In addition, by creating a new positional relativity which would invite executive discretion, that is, the rejection of naturalisation applications from EU citizens who are deemed to be ‘undesirable’ or ‘not yet ready for full inclusion and citizenship’, the evolutionary sequence of naturalisation may look at first sight incorporative – but, in reality, is founded on distancing, separation and, quite likely, on discrimination.
Exempting UK nationals from the normal naturalisation procedures and facilitating their automatic or semi-automatic naturalisation by registration or by declaration of option are certainly preferable. This would require an application for citizenship, but the process would be quick, more inclusive and non-discretionary. The EU member states could in theory still require residency requirements and the absence of a criminal record. They could also differentiate among periods of residence. For instance, residence for a period exceeding ten years could prompt automatic naturalisation, while shorter periods of residence would activate semi-automatic naturalisation. Naturalisation by declaration of option, on the other hand, would grant EU citizens the possibility of opting out from national citizenship if they wish to retain or not to compromise in any other way their national citizenship.
Although there are important differences among the policy options mentioned above, the latter is more normatively defensible -bearing in mind EU citizens’ existing rights and effective links with the societies of residence. However, even this option does not answer adequately the question why national citizenship should be superimposed on EU citizenship, thereby (re-)making nationality the basis of political membership and identity in contemporary Europe.
Let me conclude by returning to the difficulty I identified in the opening paragraphs of this post: namely, that the unrestrained operation of the principle of majority rule subverts, rather than advances, democratic political processes. Certainly, when a ‘pro-Leave’ majoritarian decision leads to millions of people being deprived of their rights, effectively undermining their life worlds and the future of their families, then there is no reason for thinking that it deserves to be respected by all those who believe in the value and the rights-affirming nature of constitutional democracy.
The domestic electoral cost of aborting Brexit cannot outweigh the political costs of damaging democratic constitutionalism and cancelling rights. Nor can it compensate for the unnecessary hardship inflicted upon millions of individuals, including 1.2m British nationals living in the European Union. It would be highly imprudent to consent to, or accept, such a (slim) majority misrule.
This post represents the views of the author, who is writing in a personal capacity, and not those of the Brexit blog, not the LSE.
Dora Kostakopoulou is Professor of European Law, European Integration and Public Policy at the University of Warwick.
“… in the EU, 22 member states permit multiple nationality, while Denmark, Norway, Estonia and Lithuania…”
Norway isn’t part of the EU.
The question begs to be asked: why have Brits who lived in the EU for years and even decades not taken steps to naturalise and switch their citizenships there? The obvious answer is because they didn’t have to, because the UK allows for dual nationalities. But dual nationalities are a fundamental insult and undermining of the nation state. It makes people who work overseas whilst claiming citizenship of a mother country they have not been back to for years or even paid taxes in nothing more than mercenaries.
The UK is not obliged to care a whit for the fate of the UK citizens now currently in the EU who had no plans to give up their cherry-picking, cake-eating habits when it comes to national loyalties and commitments. They can either all come back to the UK, or they can all naturalise in whichever EU country they are in and be done with it.
I am one of the dual nationals Andy Wong Ming Jun is insulted by (German-British), so I suppose I am prejudiced. But I don’t really understand his points. Am I a mercenary because I left the UK to get a job somewhere else? Does that make everyone who gets on his bike to get a job a mercenary?
National loyalty is much more complicated than saying that if you are loyal to one country you must be disloyal to another, because we no longer consider our actions as governed by feudal loyalty. If the Queen were to go mad and order British soldiers to invade Helgoland I suppose I could be theoretically be called up to shoot those soldiers but I do not think I would be in the wrong, the Queen would be, and it would be the duty of all her loyal subjects to stop the aggression.
There is a legitimate (in my view) gripe about dual nationals that in certain circumstances they get to vote twice, but I think it would be better to try to deal with that specifically (for example by international agreements) rather than ban dual nationality altogether.
It’s Ironic that the Singaporean guy feels insulted by Dual Nationality, yet he was happy to vote in a UK referendum despite him not being a British Citizen.
Another Brexity #Cakeism
Very well put. Thank you.
You explain extremely well what I feel: namely that many important things are going to be taken away from me and others without us having a say in it. And that we will become “second class citizens”.
That this is happening because of such a marginal “majority” is painful, but would be painful whatever the size of the majority.
That the marginal majority was achieved through lies and deception is another point nobody seems to properly acknowledge – but adds to the feeling of unjustified damage.
Susanna, lies and deceptions have been so naturalised and desensitised into politics that neither side has shrunk away from using them during the Referendum.
If Remain had won with the same small margin on the backs of the lies about a punishment budget, or a deep recession should the UK choose to leave the EU, the same sour feeling of unjustified victory and ignorance of the middle to lower classes’ concerns by those who profess to lead us would exist as well.
Hi Andy
The deception was not my main point, but I believe that Remain and Brexit worked in different categories of deception – as demonstrated by what is emerging from discussions around CA. The punishment budget, deep recession etc. are very likely to happen when Brexit has actually taken place and it is rather futile to say it has not happened whilst we are still fully part of the EU? Even government reports show that most sectors will be negatively affected for many years.
I do agree that the Remain campaign should have highlighted the positive aspects of membership of the EU whilst acknowledging that it is by no means perfect. But if Brexit used data and parts of the press to target people who feel (rightly) disenfranchised because of government policies and politics and then explain to those people that this is all the EU’s fault, and combine it with blatant lies (the bus), then they were determined to mislead people so they would vote in a certain way. Hence, a different category altogether.
I disagree with your view on dual nationalities in your other post: for many dual nationality is a blessing and I can see many examples in my family and including friends in Switzerland who are using it to remain / enable them to be EU citizens as well. Calling this “undermining of the nation state” and “a fundamental insult to it” is a bit strong? I am not sure how you can insult a state in any case. It is not a person. We want to be Europeans just as much as be Swiss, Italian, German and so on and it is a very positive aspect of our lives and outlooks.
Not much good has come from strong feelings about nation states in the past, and I’d much rather any such feelings were undermined than rights being taken away from people. The more of us that feel part of many rather than part of one, the better.
Susanna, I quote you saying “Remain and Brexit worked in different categories of deception” as if that was a good thing. Are we down now to choosing between the lesser of two evils? Between what was definitely a concerted effort by the Cameron Government to scare the vote straight for Remain with Project Fear and all its projections, the misuse of public taxpayer money to overtly campaign for Remain with that infamous leaflet sent out to every household by the government, and what is now a plausible and not-yet fully investigated or proofed allegation of psy-ops play and corruption by the Leave campaign through CA?
Remain has not a single high ground to hold with regards to the EU Referendum. They put more effort like you said in listing out reasons to be afraid of leaving the EU, and pretty much nothing on what the EU has done to benefit the UK being a part of it. Propaganda happens all the time in politics where you try to convince people that it’s someone else’s fault for their rotten lot in life, and thus “vote for me because I’m the antidote!”. Don’t try to pin this on Leave alone as if it was their fault to follow well-established political strategy.
As to our differences regarding dual nationalities, all I can say is to each his or her own. Dual nationalities are a very different kettle of fish from citizenship in one country with permanent residency in another. Theresa May was absolutely correct in marking out the choices people have, in being “citizens of somewhere or citizens of nowhere”. The whole idea here that apparently you can claim to be a citizen of the EU whilst being a citizen of your birth country merely feeds the suspicions of Eurosceptics that the whole EU project isn’t some benign economic community with political cooperation, but a full-on effort to try and create a US of Europe (or somewhere along those lines). Because you can’t be a citizen of an organisation or political bloc. Citizenship only applies to nation states!
What you spend so much time trying to defend is known by the term whataboutery. It means not having to argue substantive points, but just (trying) to demolish your opponent’s argument by saying, “yea but what about your side, they lied too.”
First, this admits the the side you defend lied. Second, it doesn’t take into account the size of the lies – the leave side had much bigger and completely unsubstantiated lies than remain And third, it doesn’t answer the scope and the consequences of the public having accepted the leave lies.
As a country, we would be no worse off politically or economically if remain “lies” had been accepted and the referendum had been won by the remain side. Sure, a few egos would have been hurt, and many Brexitiers would bemoan the fact that they had to continue to live in a country”ruled” by the EU. But, and this is a big but, nothing much would have changed. Accepting the leave lies has doomed this country to unimaginable harm. There is now no way out of the hole we have got ourselves into.
If you think there are any upsides to leaving the EU, then you haven’t done any proper research. All the experts and evidence show that it will be a massive mistake. Even the Leavers want everything to be the same after Brexit except for us to be out of the EU. That’s not possible – no frictionless borders, no trading with the EU counties without massive red tape, no free trade deals as good as the ones we have now through the EU, no say or membership of standard’s agencies, huge amount of money spent on duplicating what we have with shared agencies and yet we will still have to adopt international regulations and international standards. The only people who are for Brexit now are either profoundly ignorant (no excuse for this as all the information is out there) or completely ideologically driven or disaster capitalists looking to make a killing.
Hi Andy
What Brexit campaigners did remains in my view severe deception, and not “well established political strategy”. If it was well established political strategy then it should be changed and does not deserve the term “strategy”. Of course there are politicians who are liars and politics that deceive, but just because that is the case it should not be supported by an argument that it is “well established”.
And whilst Remain did stress the negative aspects of leaving the EU they had an obligation to do so as there definitely will be many negative effects – and they will hit those people who are already struggling most. BUT – they should have balanced this with EU achievements and acknowledgement that changes are needed in the EU. And I agree that sending out that leaflet was a bad decision. Those supporting Brexit however never acknowledge any bad decisions or messages promoted by their campaign – another interesting and telling difference.
I have no fear of a United States of Europe and have never understood why it has to be feared? What is all the fuss about? I am sure a Texan feels Texan and a US citizen at the same time. I do understand people who value their nationality highly even if I don’t share their sentiment. And I do believe they have a right to value it in the same way as having a right to have a religious belief. But any such beliefs should not be at the cost of others and through taking away from others freedoms and rights.
Hello Susanna, I am actually replying to your post below why you say you have never understood, why people fear a USE.
If you look back over the past 70-80 years then it really has been a disaster for the peoples of continental Europe at one time or another. The obvious one, Fascism in Italy, Dictators in Spain and Portugal, Generals in Greece, Occupation in Eastern Europe, Vichey collaboration in France.
For all of the above to happen the checks and balances in the political, legal and security systems have to have failed drastically. So in my opinion the people of Continental Europe see the EU and a potential move to a USE as a check or restraint on potential excesses in their own systems that have happened in the recent past.
Whereas in the UK we had fascist parties formed,so called far right parties, communist parties but none could gain traction. i.e the system worked generally ok compared to Continental Europe. This is why the tagline of the Leave Campaign resonated so much.
Tale back control from politicians who;s home systems have failed in the recent past and give it to the system you know and trust.
Look at what is going on in continental Europe today. AFD the official opposition in Germany, Austria, Italy, Catalonia in Spain.
To me it is no surprise leave one because the EU system gave the people hear nothing to trust.
Hi Ralph
I appreciate the point you are making about UK history being different to some continental history in the recent past. Having said that, many EU countries did not have the problems you mention and many joined the EU in the meantime. But better cooperation / avoiding national conflict is definitely an important aim of the EU.
In the UK you have had different problems, for example Northern Ireland. The Scottish referendum was also fairly close and was probably partly won by “remain” because the majority of Scottish people wanted to stay part of the EU (and thus at the time the UK).
Having (in your view) a superior history to other countries does not mean that borders are a better option, because borders are mostly artificial and enforced by bureaucratic and / or military means. They very rarely help to “safeguard” much unless through negotiated settlements.
You are saying because of the different history the UK is better off out of the EU? And also because of the UK’s superior political system? (I do not believe that FPTP is superior to PR, quite the opposite and the present government contains people that make me feel quite ill – JRM, BJ, DD, LF etc).
And how can you base your decision on what happened in the past rather than what is needed in the present and the future? Are you forgetting all the advantages being in the EU brings the UK and other members? Are you forgetting that the UK already has a quite “bespoke” deal?
And whilst leaving the EU at any cost may still be your preference, you should not disregard the implications it may have for the UK: is it not odd for the UK to wish to become “smaller” whilst at the same time wanting very strongly for Northern Ireland and Scotland to remain part of the UK? It is possible that all that will be left of the UK will be England and Wales. Leavers may quite like that if your argument is to be followed, as they presumably also believe that English and Welsh history in the recent past is superior to Northern Irish and Scottish ones?
If you can feel Welsh or Scottish whilst also feeling British, then surely you can feel British whilst being a member of the EU? Which is exactly what our younger generations want who mainly voted to stay in the EU. And it is their future that matters, not ours.
Hello Susan, As I am sure you have worked out we have opposite views, which is a good thing in society as it provokes thought and debate.
You have covered a lot of ground in your post so I may not respond to all.
First off my fundamental belief is that voters should be able to sack the people that make the laws they live under. I can not sack the Juncker commission by voting.
Then I am a liberal (that may surprise you) so I believe that power should be devolved as close to the people that are affected by that power. So for example I believe that the EU understand nothing about looking after the Environment anywhere in Europe that the locals do not know better. Yet the EU has a large say. Natura 2000.
I believe that we live in a digital world with vast amounts of data where quick decisions can be taken and a country needs to be nimble. With 28 countries in the EU having a say and fighting for advantage decisions are very slow and late so as to be basically not relevant when they are implemented. Take VAT and digital sales, the EU recognised that cat was being collected in countries where the invoice was raised not the country where the goods ended up. It took 15 years for the EU to sort this. The USA did it in 2. Also now the problem is not vat it is corporate tax minimisation schemes.
So in summary the only good thing I see about the EU is ease of doing business, This has now been completely overridden by all the negatives I see.
I do not believe in economic project fear. I do not see leaving a panacea in itself, but leaving means the politicians we elect are 100% responsible for the future prosperity of the UK. A lot of project fear people say brexit will ruin the economy, this is incorrect it has nothing to do with brexit but everything to do with how the politicians react (see Carney’s actions the day after the Brexit vote) and think about the great financial crash the the reactions of countries that used full fiscal and monetary powers as opposed to the poor countries in the EU that had to abide by the Growth and Stability pact.
Anyway I have gone on a but but 10 years after Brexit if the politicians get it right, the UK will be a beacon of liberal democracy off the shores of continental Europe with a much more productive economy with much higher GDP per Capita than now (as opposed to the useless GDP growth will be slower argument).
That is a future our children would enjoy.
Andy, you seem to think someone said “Punishment Budget” – Who was that?
No one campaigning for Remain.
You’ll find you’ve yet again fallen for Leave Lies.
Please stop spreading them.
Many of the things spread by “Leave” where known and provable lies. What you have named there were two possibilities highlighted by Remain as “Risks” – If you are unsure about the meaning of “Risk”, please look it up.
For what its worth we effectively had a Budget immediately after the referendum where Tax cuts for businesses were announced, FTSE Bolstered, Quantitative Easing performed, BoE Base Rate Halved, EU Grants were temporarily withheld, etc. But it was never called “Punishment Budget” by the people who proposed it.
Professor Kostakopoulou notes that “the unrestrained operation of the principle of majority rule subverts, rather than advances, democratic political processes.” She hits the nail on the head with respect to the integrity of the first-past-the-post principle in a referendum. While I make no reflection on an election first-past-the-post mind-set, as an advocate for proportional representation, I will not mount that broader argument here. It is the application of the first-past-the post rule to referenda that is flawed and a root cause of the angst that has gripped the nation, and which is reflected in the vituperousness in comments in response to Brexit arguments in the media and social media. She referred to her unease at the effects on democracy, which I share. She has a problem with the ability of a slim majority to make decisions “which can injure significantly a portion of the community and deprive it of their rights, including citizenship rights, by referendums – thereby evading the channels of accountability before representative assemblies.”
If you look at other jurisdictions that allow for referenda, you will find an absolute majority at the very least is required for changes to the Constitution, for example, or for major decisions affecting a nation as with the Brexit proposals. In those jurisdictions nothing less than a two-thirds or three-quarters majority of voters approving a proposition is required before a change like Brexit is affected and a majority of voters participating, Depending on the political institutions of the country, further requirements indicating broad acceptance of the proposal put at a referendum might be applied. The reflection in much commentary on the difference in the referendum results between London and other counties and regions is a case in point.
There is a matter of prudence here, and that is, a government will only recklessly implement a proposal that on the one hand had only 37% support and a split vote between those who did vote. A further feature of that result was that 28% of voters did not participate and no conclusion can be drawn about that except that 63% of voters did NOT support Leave. And I think that demonstrates the falsity, illogicality and mendacity of claiming the result as a demonstration of the will of the people. The government has succeeded in splitting the nation by claiming a mandate that doesn’t, and never did exist, for Brexit.
That is not to deny the support that does exist in the community for withdrawing from the European Union. That acceptance of, and support by, Leavers for this argument was whipped up by unsustainable claims, outright lies, dog-whistling on immigration and its racist overtones, and possible breaches of electoral funding law further demeans any clams that the referendum provides a mandate for Brexit.
While shamelessly and hubristically claiming the democratic moral high ground when it is populism they are demonstrating, key Brexit advocates are riding roughshod over every basic democratic principle. And in their recklessness they put the very future of liberal democracy under threat with an attitude that belongs to the empire and authoritarianism, failing respect for the national interest, the welfare of all the British people, and human rights, while turning their backs on the principles of the EU that have bound the nations of the Union in a long-term peace. That recklessness has been exacerbated by incompetence in the negotiations with the European Union
The shame is that no broadly accepted leadership has arisen to coalesce the many Britons who share a concern about the damage inflicted by Brexit to the integrity of Britain’s place in the world, its economy, its unity, and the social impact of unleashing open hostility at immigration. Logically that role would fall to the Labour Party, which has, instead, sat on the fence.
One slight correction: Netherlands also does not allow dual citizenship and one has to renounce your former citizenship (which costs a lot if you are British). There is one exception to this rule (that matters here), which is if one is Greek then one cannot renounce one’s Greekness. This probably applies in the other EEA countries that require one to abandon one’s previous status.