[UPDATE 9.12.2016, 1515] Guy Verhofstadt has given some more detail about how important this associate citizenship thing is to him – see The Independent. However all the main issues with it I outline below still stand!
There has been quite some heated reaction to Guy Verhofstadt saying he backs the idea of individual Brits somehow being able to retain EU citizenship after Brexit, for a fee (Guardian story here). This builds on the initial proposal of Luxembourg liberal MEP Charles Goerens.
This is a pretty complicated and multi-faceted debate, and I will try to take apart each aspect of it.
First, how does EU citizenship even work? Essentially it is not a citizenship in its own right, but it is a series of rights conferred upon an individual thanks to the country whose citizenship the individual holds being a Member State of the EU. Hence the idea of being able to carve out some EU citizenship when the UK is no longer in the EU is going to be legally very complex (but hell, what with Brexit is legally easy?)
Second, what rights does EU citizenship confer – broadly some political rights (like the right to vote in EP elections, and stand as a candidate, even in another EU country), and freedom of movement rights. There’s a handy summary here. If associate EU citizenship is to have any meaning it would have to deal with those two issues. Even then it would be rather thin gruel – EU citizenship has its uses, but the rights it confers are limited – even calling efforts to simplify the lives of Brits in the EU post-Brexit “citizenship” might be stretching it.
But to the practicalities…
On the freedom of movement issue – this is only relevant if the UK were to go for an outside-the-single-market variant of Brexit. If the UK went for the Norway option, freedom of movement could be preserved – Norwegians can live and work wherever they wish in the EU.
Were the UK to go for a hard Brexit, the question then is how would the rest of the EU react? Would it want to allow UK citizens to freely work and live in the rest of the EU – as a right – or not? And would there even be a common EU position on this issue? As this debate between Michael E. Smith and Kirsty Hughes shows, this isn’t altogether simple to solve – as work rights for third county nationals are up to individual Member States currently. The rest of the EU might reason that allowing Brits freedom to move and work within the EU would be advantageous, and the question would then be if this could be conferred as a matter of right, or whether some sort of simplified visa system would suffice. Conferring freedom of movement for Brits in the EU as a right (when EU citizens would not have that right in the UK) would give meaning to the associate citizenship idea, but would generate political backlash. Were the solution instead simply to offer simplified visa procedures for Brits in the EU, that does not justify calling the system citizenship.
On the voting rights issue – here there is a precedent, oddly from the UK that gives Commonwealth citizens the right to vote in UK general elections, providing the person is permanently resident in Britain (although that person could still need a visa to stay in the UK), while not all Commonwealth states reciprocate. Another example is that some Swiss cantons give voting rights to non-Swiss (final paragraph here). So the EU could offer voting rights in EP elections to Brits who are permanently resident in the EU, possibly but not contingent upon the UK ensuring EU citizens resident in the UK still had the right to vote in local and regional elections there. But the essence is that worldwide voting rights for non-nationals are not all perfectly reciprocal.
There has also been some argument about the costs of associate citizenship, and whether this would be justified. Sadly we already have the commoditisation of citizenship – it costs €255 to apply in Germany, and the UK has a bunch of fees for citizenship applications, some more than £1000 (PDF). I hence cannot see why a one-off fee to get associate citizenship ought to be a show stopper – although I personally have problems imposing fees on things that ought to be universal.
Some Brexiteers – like Andrew Bridgen MP (bottom of The Guardian article here) – have attacked the plans. I see these objections from the UK side as sour grapes – Britain as a country has voted to leave, but that does not mean efforts from individual Brits to retain some of the rights that matter to them is wrong. Bridgen sees this as a means to subvert the Brexit process, an argument that also does not hold – the EU is happy to let the UK, as a country, leave, but I think politically is quite right to try to see what it can do for the individual Brits who treasure what the EU gave them. Verhofstadt seems to be better at making an appeal to the 48% than any British politicians are currently!
Essentially all of this boils down to three issues. First, it is about the EU seeing Brits as individuals and seeking to confer rights on them as such, and to offer something to those individuals regardless of the negotiation stance taken by the British state. Second, any associate citizenship system would require both the EU institutions and the remaining Member States of the European Union to not see things in a perfectly reciprocal manner – it would mean conferring more rights on Brits than the UK would confer on EU citizens there (and that could lead to problems). Third, the legal complexities of making this whole thing work are hard, but not insurmountable.
This seems to be a big step towards setting up a free standing European Union citizenship, unconnected with citizenship of member states.
In terms of reciprocity, one could also create an ‘associate British citizenship’ and award that to some non-UK EU citizens. The criterion for granting ‘associate EU citizenship’ and ‘associate British citizenship’ could be that the person needs sufficient connections to the UK or to one of the other EU countries. What rights the associate citizenships should grant is less clear.
In a way, it is already possible to hold an ‘associate British citizenship’. Many people in Hong Kong hold a special ‘British National (Overseas)’ citizenship, which offers a subset of the rights offered by a full British citizenship.
Why would Spain for example agree to the Brits staying in their country, while its own citizens are likely to have no such rights to remain in the Uk and might get deported? I think it is great for the people who voted remain and won’t lose their EU citizenship fully; but it makes a mockery of the millions of EU citizens who live legally in the UK, taking up their European citizenship treaty rights of free movement, yet likely losing their right to remain. This offer should have come after it is clear what kind of brexit is negotiated; I fear the unintended (or intended?) consequence will now be that EU citizens in the UK will now be used even more as a bargaining chip – how can it be right to allow freedom of movement in one direction only – as that is what this is? I have contributed to the UK half my life (20 years) and the uncertainty surrounding my status is crippling.
Thanks for the interesting article, Jon, lots to consider.
However, maybe I’m on the wrong wave length here, but as a UK citizen and permanent tax-paying resident of another EU country, voting rights are not my first priority – day to day stuff like rights to health care, work permit, social benefits, mortgages etc. are presumably set to disappear. What’s been said on this?
Am I being mean spirited in feeling annoyed that after deciding on Brexit, UK citizens resident in the UK will be allowed comfortable “light” facilities, while UK citizens whose home is in the EU have their lives turned upside down?
With the additional surprise at the EU’s continuous dangling of the “fear” factor in front of independentist-minded Catalans and Scots about being thrown out of the EU if they split from their nation state. When even before asking, it seems the British state gets offered a draft deal for its citizens as EU leavers!
Just let me know, people, if there’s another forum I should be on …
Jon, clearly this requires some goodwill of the part of both EU bodes and member states to work. It also crucially depends on how hard Verhofstadt pushes it with the Commission in the negotiating brief.
One further right that ought be included is protection of the existing rights under the mutual recognition directive. For example, I’m sure that you know enough British lawyers whose rights to work and audience elsewhere in the EU are under threat.
I’m not sure if it will be that complex.
After all it will not be full EU citizenship, but associate EU citizenship. Only applicable to citizens of former EU member states. For a subscription fee.
Since it will not be full EU citizenship, all the rights accorded to EU citizens need not apply. And in terms on non-reciprocity when it comes to freedom of movement for associate citizens, well there would be some political backlash in other member states, however I think this is where that subscription fee comes in – it amounts to a tax, which allows for representation and rights. So even if the British government doesn’t wish to pay fees to participate as a full member of the single market, individual British citizens could. Which in turn would provide funds for the European Union (helping to mitigate the loss of Britain as a net contributor).
What would need to be done is to amend the treaties and secondary legislation to provide for associate EU citizenship and the procedures that go with keeping it and retaining it (probably including signing a declaration concerning adherence to European values as has been suggested etc).
Looking through the summary of rights for EU citizens, I could see associate EU citizens being accorded the following rights:
* Voting and standing in European elections, once resident in a member state (and probably standing for and voting for a delegate or delegates representing associate citizens generally rather than a territorial destrict, with such an associate MEP having limited voting rights, such as voting on measures which only affect associate citizens)
* Voting in municipal elections when in an EU member state
* Petitioning Parliament and the Ombudsman
* The right to apply to the EU institutions in one of the official languages and to receive a reply in that same language (as Ireland will remain in the EU, English should still be an official EU language; they could even change the rules on this to include the official language of the former member state whose nationality the associate citizen holds)
* Right to free movement and residence – but probably with a few extra restrictions on the positions one can work in
* Right to consular protection
The rights I can see being curtailed (some even significantly) would be:
* Freedom from discrimination on nationality. As associate citizens they probably could be discriminated against in favour of full citizens in all spheres since they would still technically be third country nationals.
* Accessing European government documents – see above, but also given that as associate citizens they could well be in the UK civil service and negotiating with the EU it would make sense to restrict what kind of access they are given to European Parliament, European Commission and European Council documents.
There could also be additional benefits conferred such as a shorter qualification time for associate citizens to acquire permanent residency and national citizenship in member states than other third country nationals (in cases where there are differences between the qualification times for permanent residency for EU and non-EU citizens).
Thanks, Jon, for this nice summary. As you say, these models of “associate citizenship” open up legal complications: suddenly there would be second-class EU citizens, anomalously without member state citizenship. The pay-as-you-go subscription model demeans citizenship: It is not be a service package you sign up to and quit when convenient, but the bond to a community of solidarity where we all participate in building up.
A more straightforward model may be a Brexit asylum directive. Along the guidelines under such a framework, each member state can set up fast-track, lower-cost procedures for acquiring (regular) citizenship. The schemes can be open to those Britons who have exercised freedom of movement and thus have a link to that member state, as well as younger Britons (say under 35).