One of the biggest issues surfacing from the UK’s impending departure from the European Union is the rights of the 1.2 million Brits living in the 27-nation bloc. After all, with the UK severing ties with the EU, it looks like Brits will have to give up EU citizenship too.
But a new court case, if successful, could lead to Brits retaining their EU citizenship, regardless of what happens. The idea for the case started with a simple question: would Brits living in the EU be required to leave the European countries they call home when Brexit happens in March 2019?
Jolyon Maugham, a London-based lawyer, hopes they don’t have to, and that’s why he is supporting and funding five Brits living in the Netherlands and the Commercial Anglo Dutch Society who have asked a court in Amsterdam to refer their case to the Court of Justice of the European Union (CJEU), the highest court in the land.
On Feb. 7, the Amsterdam court ruled that it will draft two questions on behalf of the claimants to be sent to the CJEU.
First is to determine if Brexit means Brits will automatically lose their EU citizenship and the rights it bestows on them currently, such as the freedom of movement across all member countries. If the answer is “no,” then the second question is what, if any, limitations should apply to maintain the rights of Brits when the UK leaves the EU.
“If this case succeeds it would give EU citizenship rights to 60 million people—even after Brexit,” Maugham tweeted. This claim hinges on Article 20 of the Lisbon Treaty, which binds all the members of the EU and says:
Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
In effect, although the Dutch case was filed to determine the rights of the 1.2 million Brits living in the EU after Brexit, its implications could be wider. Here’s how Maugham explains it in an opinion piece on the Guardian:
Article 20 says that if you are a national of a member state, you are also a citizen of the EU. In other words, your national citizenship is your gateway to your EU citizenship. And it also says that EU citizenship is a separate thing, over and above, your national citizenship.
Yes, you need member state nationality to become an EU citizen—but you don’t necessarily lose that EU citizenship if you cease to be a member state national. So if you stop being a national of a member state because your state ceases to be a member of the EU—Brexit, in other words—might you still retain your EU citizenship?
This is a clever piece of legal argument. I say “clever” because, if Maugham is right, in a sense, it would render the Brexit referendum vote somewhat meaningless for all current British citizens and its full restrictions would only apply to those who become British citizens after March 2019. It also raises the reciprocity question: would all current EU citizens also be allowed to retain, say, the freedom of movement in the UK they enjoyed before Brexit?
Maugham thinks that’s unlikely, and the CJEU may be ok with that. “I think the [CJEU] is interested in establishing EU citizenship as a valuable thing in its own right, a thing that is discreet from your citizenship of a member state,” Maugham told the FT. “It wants the EU to occupy the same place in the hearts and minds of EU citizens as the US does in the hearts and minds of residents of the US. That will influence its thinking.”
A previous attempt Maugham made through an Irish court to give Brits a way to stop Brexit never made it to the CJEU as he had hoped. So it’s a victory for Maugham that he has finally found a way to get the CJEU to weigh in on a theoretical question, albeit a different one.
Brexit is a complex divorce. But as with any divorce, behind the blame games and financial settlement, it is the lives of people who will be affected most. Regardless of what happens at the CJEU, Maugham is starting to succeed in separating the legal implications of Brexit from the political rhetoric that has left everyone confused.