Kochenov, Dimitry

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Brexit and Citizenship verfassungsblog.de /brexit-and-citizenship/Dimitry Kochenov Mo 20 Jun 2016What are the likely consequences of Brexit for the status and rights of British citizenship? Can the fact that everyBritish national is an EU citizen mitigate the possible negative consequences of the UK’s withdrawal from the EUon the plane of the rights enjoyed by the citizens of the UK? These questions are not purely hypothetical, as thereferendum on June 23 can potentially mark one of the most radical losses in the value of a particular nationalityin recent history. The following is a brief summary of my LSE ‘Europe in Question’ paper.A glance at the EU Treaty makes clear that EU citizenship as such cannot possibly affect, legally speaking atleast, the regulation of withdrawals from the Union: Article 50 TEU, which establishes the procedure to befollowed by any withdrawing state, does not contain any EU citizenship-related conditions. Imposing such on apeople of a Member State that has just voted precisely to leave the Union would be nothing but a direct attack onthe letter and purpose of the provision making withdrawals possible.This being said, we have to realise that once the UK withdraws, UK nationals are by definition not EU citizensany more: the Treaties are quite clear about the fact that this legal status is based on the nationalities of theMember States (Art. 9 TEU). Once the UK is not a Member State, its nationality cannot possibly trigger EUcitizenship status. This means that UK citizens in the EU would have a legal position inferior to Russians andMoroccans (whose countries have non-discrimination agreements with the EU), besides losing all the well-known perks of EU citizenship ranging from free movement in the EU, including the right to work and to settleanywhere in the Union without any prior authorizations and non-discrimination on the basis of nationality, as wellas political rights at local and EP level in the country of residence, and consular protection abroad via therepresentations of other Member States of the EU (Part II Treaty on the Functioning of the EU).Currently belonging to the elite club of the top-quality nationalities in the world, UK citizenship’s position will be ina free fall after Brexit. Applying the methodology of the Quality of Nationality Index which I designed togetherwith Henley & Partners to the Brexit situation results in a loss of 30% of UK nationality’s value – anoverwhelming downgrade to the level of Argentinean and Chilean nationality (figure 1). This is a more dramaticloss of value that what war-ridden Ukraine and protest-shaken Bahrain have experienced over the last years.This situation is unquestionably bound to have political implications, necessarily making the negotiators incharge of the Brexit agreement with the EU. It seems it would be too cynical of the negotiators of the withdrawingstate to assume that reducing UK citizens residing (or, importantly, wishing in the future to reside) in the otherMember States to a status inferior to that of some third-country nationals would be acceptable, even if thisseems to have all along been the position of the British government (as testified by the decision to hold thereferendum in the first place) and the British courts. The UK Supreme Court in a most unfortunate andformalistic decision has refused even to extend the right to vote in the referendum to the British citizens longresident elsewhere in the EU (UKSC 2016/0105)). The referendum on June 23 is thus quite remarkable, as itgives those affected the most by its outcome absolutely no say, be it a Brit in Brussels or a Pole in London. Inthis sense, it is by itself a high point of refusing any importance of citizenship, should we believe that citizenshipis political.It is unquestionable that reducing the scale of rights is bound to derail plenty of lives. Consequently, EUcitizenship rights are bound to play an important role politically in the context of the withdrawal negotiations. Thecomparison between the loss of rights experienced by the citizens of the UK on the one hand and otherEuropeans on the other (so long as free movement and other EU-level rights will seize being provided in theterritory of the UK) could sound unjustified in terms of the sheer difference in scale between the two groupsfacing the inevitable reduction of rights (only the UK in the case of the Frenchmen and Estonians and all the restof the EU in the case of post-Brexit UK citizens). Yet, from a purely pragmatic point of view such mutualdowngrade is good news, since when both parties are threatened with a loss, a more productive dialogue could1/3Figure 1 (methodology source: Henley & Partners–Kochenov Quality of Nationality Index, 1st ed., Zürich: Ideos,2016)be said to be more likely. This increases the hope for an acceptable negotiated solution.The question is whether a dramatic loss of rights by the citizens on both sides of the newly-emerging EU borderis an inevitable follow-up of a withdrawal of a Member State from the Union. Could some solution to be found toavoid it? Any arrangement granting quasi-citizenship of the EU to the citizens of the post-Brexit UK will de factoresult in affecting negatively the core considerations behind wanting to withdraw – however arcane and esotericthese can seem to a minimally informed observer – thus openly playing against the political objective of leavingthe Union. The resulting political balance here can be very tricky: how much can real and tangible rights of thewithdrawing state’s own citizens be cut in the name of the blurred rhetoric behind the case for withdrawal? Thisbalance will be for Boris Johnson to try to execute, keeping in mind that maintaining an EEA-like arrangementwith the EU in the context of the free-movement of persons will obviously have a very high price at thenegotiating table with the EU aware of possible domino-effect of British irresponsible shortsightedness. This pricewill necessarily include at least reciprocal arrangements for EU citizens in the UK. Negotiating with the remainingMember States collectively makes it impossible for the UK to discriminate between the nationals of the remainingEU Member States.Bilateral negotiations following Brexit could provide an alternative possibility, implying the introduction of fullreciprocal free-movement arrangements bilaterally only with those EU Member States where the majority of theUK expats reside, plus, perhaps, the most economically successful states, thus dropping all but a handful of theMember States, arguing that these are anyway of little interest for UK citizens in terms of settlement and workopportunities. This approach is bound to be put on the table in any bilateral setting, given the relative mono-dimensionality of the flows of free movement of labour in the EU. It is not that UK citizens are all packing up to goto Slovakia or Bulgaria. The contrary is true. Dropping much of Eastern and some of Southern EU from the freemovement arrangements could thus be presented by the negotiators as a reasonable way forward, to strike theright balance betweenthe political goal ofsecession and the needto make sure that owncitizens of the secedingstate do not suffer areally serious blow totheir rights. Theconsequences forcountless individuals andfor the idea of Europeanunity, should such anapproach be chosen,could be drastic indeed,a valid reason to prefer astrictly multilateralapproach and a built-inlegal guarantees in thefinal arrangement,against any suchbilateral moves in thefuture.In the grand scale ofthings, the huge lossesin terms of rights and thequality of nationalitywhich the citizens of theUK are bound toexperience in case of Brexit is but a cherry on top of the Brexit pie, the recipe of which is so difficult for any2/3intellectually honest person to understand.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Kochenov, Dimitry: Brexit and Citizenship, VerfBlog, 2016/6/20,http://verfassungsblog.de/brexit-and-citizenship/.3/3

Brexit and Citizenship

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Brexit and Citizenship

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