After Brexit: Time for a further Decoupling of European and National Citizenship?

The aftermath of the Brexit referendum has produced a whole series of uncertainties, many of which surround citizenship. Much of the UK debate in the last weeks has focused on the varying levels of guarantees UK politicians are willing make to EU citizens who have made their lives in the UK. German politicians, up to and including Germany’s Vice-Chancellor, have proposed (following ideas advanced in the Verfassungsblog) to secure an easier path to citizenship for Britons living in other EU states. Finally, what will happen to the citizens of those parts of the UK who voted decisively to remain in the Union? Over 5 million Scots, and 1.8 million Northern Irish, face the removal of EU citizenship rights they voted in large numbers to keep.

At the root of this conundrum are classical concepts of EU citizenship law. The key is the idea that EU and national citizenship are decisively coupled. It is for the Member States to decide who ‘belongs’ to their national polity and who, by extension, can benefit from European citizenship and the rights attached to that status. EU citizenship is, as the CJEU famously laid down in Grzelczyk, ‘destined to be the fundamental status of nationals of the Member States’. Yet it is also meant to be a status fundamental to all EU citizens ‘enabling those who find themselves in the same situation to enjoy the same treatment in law irrespective of their nationality’.

Some of the reactions to Brexit from both the Union and the Member States call into question whether there truly is something fundamentally European about European citizenship. In the Scottish example, it is the UK government that, at a stroke, can deprive its nationals of European citizenship rights they have enjoyed for more than two decades. For the President of the European Council, Donald Tusk, the issue of Scotland’s EU membership is ‘a matter for the UK’ ...

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