Largely ignored in recent months as a done deal, the thorny issue of the future rights of EU citizens post Brexit – as with UK expatriates in the EU – still leaves important matters to be resolved. New to the list is whether in fact UK nationals will have the right to retain EU citizenship after Brexit has been passed.
Many from the referendum ‘Remain’ camp (and probably some ‘Leave’ supporters) would advocate for this approach. However, the UK government’s position seems to be clear that only citizens of EU member states are able to hold EU citizenship – and that option will only be open to British citizens if they have dual nationality with an EU country.
That may work in the case of EU member states that do recognise dual nationality. Dutch citizens, for example, with British passports living in the UK, were not able to hold a Dutch passport as well. At least until now. Since the 1st of April 2003, following an amendment to the Netherlands Nationality Act of 1985, Dutch subjects with dual nationality would lose their Dutch citizenship if they hold foreign citizenship and reside outside the Kingdom of the Netherlands or the European Union for ten years. Dual citizenship is allowed in 15 EU member states, and seven more allow a naturalised citizen to keep their original nationality under certain conditions.
Change of Heart
But in the case of the 100,000 Dutch citizens now living in the UK, the new incoming Dutch government announced that it would allow them to have dual citizenship – a decision to be welcomed by UK based Dutch citizens already facing the bureaucratic realities of Brexit compliance. This is, of course, a complete volte-face in that the government’s policy was formerly entrenched in the 2003 legislation.
In theory, most EU countries don’t call into question the rights of Britons living in the EU. But understandably, many expatriates feel uncertain as to whether they are allowed to retain their EU citizenship, and all the rights and benefits that go with continued EU citizenship: including, principally, the right to travel, live, study and work wherever they choose in the EU. They would also expect to be in receipt of a wide range of other additional rights regarding health, education, work and social security.
A group of expat UK nationals who have settled in the Netherlands have issued proceedings in a Dutch district court for clarification on their existing and future rights as EU citizens, including the right to free movement, maintaining that their rights cannot be removed as part of the Brexit process. The district judge has ruled (at their request) that the case be referred to the European Court of Justice (ECJ). Its decision will have an important bearing on the outcome of current Brexit negotiations and set a key precedent going forward.
The plaintiffs have asked the court to refer their case to the European Court of Justice (ECJ), arguing that their rights as EU citizens are enshrined in Article 20 of the Lisbon Treaty. Their counsel, Jolyon Maugham, a British QC, contends that Article 20 of the Lisbon Treaty treats an individual’s citizenship of an EU member state as a gateway to EU citizenship. “But it doesn’t say what happens if your member state ceases to be an EU state. If that does happen, as with Brexit”, he asks “might you be able to retain your EU citizenship?” Maugham notes that this is not just a question affecting over one and half million UK expats living in the EU. “It opens up the question of whether all 60m Britons alive at the moment that Brexit happens might have their citizenship preserved.” Unlikely as it seems.
With a 21 month Transition period (starting after 29th March 2019 if the full Brexit terms are agreed) the EU and the UK have in effect agreed to delay the full effects of Brexit. This reassures UK expats more time to establish residency and to accumulate benefits in an EU member state until 31st of December 2020. The EU chief, Michel Barnier, has confirmed that UK citizens “who arrive during the transition period will receive the same rights and guarantees as those who arrived before the day of Brexit.” He also states that both sides had reached “complete agreement” on citizens’ rights after Brexit.
To secure the right to remain and access existing benefits post-Brexit, UK nationals need to be “lawfully residing” within their EU country of choice before the cut-off date. Those planning on relocating will need to do so as soon as possible to maximize their time in that country. Those already there who have not acquired permanent residency – available after a period of five continuous years – should take steps to formalise their residency status as soon as possible.
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