by Ciarán Burke (Professor of International Law, University of Jena, and Law Reform Commission)
Exactly one year ago, Prime Minister Theresa May expatiated on the subject of citizens’ rights in the post-Brexit EU and UK, memorably telling the Conservative Party Annual Conference that “if you believe you are a citizen of the world, you are a citizen of nowhere. You don’t understand what citizenship means.” Taken in the context of a conference dominated by the decision of the British public to leave the European Union, the audience was left with no doubt that Brexit would represent a re-casting of citizens’ rights, a re-assertion of the exclusivity of United Kingdom citizenship, and a rejection of the creeping internationalism of citizenship that the EU was seen to represent, though the form this transformation would take was still a matter of some conjecture.
One year on, and as our continental cousins might observe, plus ça change. Another Tory conference, another round of bombastic statements about Britain’s rebirth outside the EU – albeit chiefly from the Foreign Secretary rather than the Prime Minister – but little more in the way of detail on how citizens’ rights will be affected by the coming change, or indeed how the change will manifest itself.
Though it is common to imagine that the ‘little Englander’ rhetoric that embodied much of the Brexit referendum campaign is a longstanding feature of British society, in fact there is great irony in the UK taking this turn. A prominent supporter of the system of Nansen passports, offering free and safe passage – as well as certain social rights – to refugees and displaced persons after the First World War, the UK also extended the right to settle in Britain – as well as most political rights – to all citizens of the Commonwealth (then numbering hundreds of millions) until the Commonwealth Immigrants Acts of 1962 and 1968. We in Ireland are also aware of the extensive privileges Irish citizens enjoy in the UK, including the possibility to vote and stand for Parliament. An outward looking, mercantile society, while Britannia ruled the waves, perhaps it was no surprise that the UK was a world leader in extending privileges analagous to citizenship to nationals of other states.
The European experience has sat less well with the British public. John Major’s famous outburst at the ‘bastards’ in his cabinet who threatened to resign over the Maastricht Treaty reflected a growing divide within the UK over whether to contemplate deeper integration with the EU. Maastricht’s most memorable gift – that of EU citizenship – signalled the (gradual, piecemeal) transformation of a regional economic community into something approaching a federal entity, where citizens of one member state could expect legal protection and equal treatment in all others, even if they were not economically active. The dynamic interpretation of this provision by the ECJ, as well as its development in subsequent treaty amendments, has rendered EU citizenship a prized prerogative entailing a meaningful array of additional rights.
The question of the rights bestowed by virtue of EU citizenship post-Brexit should therefore concern all citizens of the Union (including UK citizens). The privileges conferred are extensive, including rights to participate in elections, consular protection and assistance, as well as rights to move and settle across the EU, and to bring one’s (non-EU) family members along for the ride in many cases. Whatever species of Brexit (hard, soft, or otherwise) eventuates, a reduction in these rights is to be expected. As with most questions concerning Brexit, much will hinge upon the agreement reached in March 2019. However, while answering certain Brexit-related questions is near-impossible without knowledge of the post-exit bilateral agreement between the EU and the UK, in the case of citizens’ rights, certain tentative conclusions may be offered.
The first is that the question of a ‘hard’ Brexit is something of a chimera. The possibility of the UK crashing out of the EU without an agreement is not impossible – indeed, the political fumbling of the Conservative Party seems to make this an ever-more likely prospect – but ultimately, the UK will not sustain a position cut off from its nearest neighbours for long. An agreement will be struck, at one moment or another, and this will contain some reciprocal provisions on free movement. The British public are unlikely to trade their beloved Spanish holidays for summers in Cornwall indefinitely.
The second conclusion is that the substantive provisions of any subsequent agreement relating to citizens’ rights will not, in and of themselves, be conclusive in determining the rights to be reciprocally enjoyed. Rather, the questions of the nature and the institutional supervision of the agreement as a whole are likely to be of decisive importance.
Two cases with seemingly little in common serve to illustrate this point. The first, Polydor, concerned how the (now-defunct) FTA between Portugal and the EEC – which contained almost literally identical provisions to those in Community law – was to be interpreted. In deciding the case, the ECJ highlighted the institutional disparities between the EEC’s internal market system on the one hand, and free trade agreements, on the other. It held that the FTA did not have the same objective as the EEC, i.e. creating an Internal Market. As such, even rights framed in identically could be interpreted in a divergent manner. The 2009 Grimme case reiterated the Polydor principle in the context of the EU-Swiss bilateral arrangement. Under such a model, fragmentation – and eventual diminishment of rights and prerogatives of UK citizens exercising mobility on the basis of a subsequent agreement – is likely to result, as the changing context of EU law evolves, while the FTA remains static. Moreover, the question of the context in which norms would be interpreted, namely in the UK courts on the one hand, and the EU courts on the other, could create an uneven arrangement, something that the EU is plainly keen to avoid. This would hamper any mobility in the medium term, necessitating frequent renegotiation and precluding a durable solution upon which citizens could reciprocally rely.
The second case of relevance is the 2014 Atli Gunnarsson judgment of the EFTA Court. This case dealt with rights arising under the EEA Agreement, an arrangement crafted for closer co-operation between the EU and the EFTA States (except Switzerland), extending the Single Market without incorporating the various social policy appendages. The Agreement also includes a parallel system of supervision and enforcement, in order to ensure homogeneity between the EU and EFTA pillars of the expanded EEA Single Market. Concluded contemporaneously to Maastricht, the EEA Agreement explicitly excluded citizenship from its ambit, thus precluding the exercise of rights by non-economically active EEA nationals in a manner analogous to their Union counterparts. The Gunnarsson case involved an Icelandic EEA national who had retired in Denmark, and who wished to benefit from the same tax advantages as Icelanders who had retired at home. Nothing in the EEA Agreement prescribed that such Iceland was obliged to ensure such equal treatment. However, the EFTA Court – in order to preserve the effectiveness of the EEA legal order – resorted to expansive interpretation far beyond what the ECJ had deemed appropriate in relation to substantively identical provisions of EU law in past cases, ignoring the fact that the EFTA States had repeatedly explicitly excluded EU citizenship from EEA law, to import certain rights identical thereto into the legal system. Failure to have done so would have resulted in a lop-sided Internal Market, with a lack of reciprocity likely to undermine its functioning in the long term.
The lesson of Polydor and Atli Gunnarsson seems to be that the overall nature of the UK’s post-Brexit agreement with the EU is likely to prove decisive in determining the extent of citizens’ rights. A loosely-bound static free trade agreement is unlikely to serve as a durable base for reciprocal guarantees, given the divergent contexts of the ECJ and the UK courts and their interpretative techniques, as well as the evolving nature of EU law. Equally, EEA access, or something analogous thereto, will likely impose obligations upon the UK beyond what they formally agree to in relation to both their own and EU citizens, much in the manner Iceland found itself obliged to provide for Mr. Gunnarsson, since the EFTA Court had to ensure that EEA law keeps pace with the EU’s continuing evolution, or risk endangering the Internal Market.
The former option will necessitate frequent recourse to diplomacy to ensure the continued functioning of the agreement, requiring concord with European colleagues to ensure functioning trade relations. The latter will require the UK to comply with interpretation contra legem by another Luxembourg-based court on the rights of UK citizens abroad and EEA citizens in Britain. Taking back control? Rather, it seems, the UK still doesn’t understand what citizenship really means.