© 2017 SCER
Brexit presents a unique challenge for EU citizenship. It does not represent the relatively more straightforward, in legal terms, exclusion of those who never had the status of EU citizenship in the first place but, instead, the taking away of EU citizenship altogether from UK nationals and the shrinking of the territorial scope of associated rights for EU citizens from other member states. This transformation is an unprecedented and legally complex shift. The negotiations completed to date have focused on the implications for free movement and residence rights exercised by the end of the proposed transition period, without yet considering questions flowing from the status of EU citizenship in a more general yet also deeper sense.
On 19 March 2018, the European Commission published a revised version of the draft agreement on the withdrawal of the UK from the EU. Detailed analyses of and responses to the proposed settlement on the rights of EU citizens in the UK and UK nationals in the EU suggest two broad themes. First, overall, the draft agreement outlines a framework very close to that proposed by the EU (as opposed to proposals by the UK) since the beginning of the Article 50 negotiations. However, second, some significant gaps in the protection of rights remain. For example, with few specific exceptions (such as for frontier workers), the rights outlined in the draft agreement concentrate on EU citizens in the UK and UK nationals in EU Member States who will ‘continue to reside there’.
That limitation highlights two further points coming into ever sharper relief as the Brexit negotiations progress. First, EU citizenship, as any citizenship, is a status premised on exclusion. Citizenship exists not just to reflect a civic, emotional or political connection or to define an associated set of rights and obligations, but also to distinguish the privileges and the protection that will be extended to those who hold it compared to those who do not. In that sense, citizenship rights differ markedly from human rights.
Second, EU free movement rights are a legal novelty. The theme of ‘continuity’ pervades the text of the draft agreement, but we see more clearly now that continuity has been focused on security around past choices than opportunities into the future. Perhaps this becomes clearest when we consider what the draft agreement does not contain: the ‘missing’ Article 32, included in the text published on 15 March but deleted from the text published on 19 March. Article 32 had provided: ‘In respect of United Kingdom nationals and their family members, the rights provided for by this Part shall not include further free movement to the territory of another Member State, the right of establishment in the territory of another Member State, or the right to provide services on the territory of another Member State or to persons established in other Member States’.
This provision prejudged the outcome of negotiations on the future relationship between the UK and the EU and, from that perspective alone, is better removed. But it also evoked a future that few UK nationals or EU citizens could desire. The practical questions around service provision alone challenge Article 32’s depiction of a quaintly isolated one-member state life, at odds with how mobility is actually experienced by many in practice.
Brexit debates within the United Kingdom often reflect a perception that what the EU internal market provides under the method of free movement can be reproduced or replaced by either domestic regulation (for persons, under normal immigration rules) or international agreements (both with the EU and with third countries).
But that perception fails to appreciate the defining characteristics of free movement: a system based on rights rather than permissions; a system designed for fluidity rather than rigidity; a system that can accommodate both temporary or short-term activity and more permanent or longer-term relocation; a system that works for both natural and legal persons; and a system underpinned by comprehensive flanking frameworks worked out over a considerable period of time and in considerable detail, all underpinned by the trust-based workings of mutual recognition as well as principles and procedures that ensure the enforcement of rights by those affected and not just by those in charge.
Neither domestic nor international mechanisms can replicate what the EU internal market enables, because of a crucial feature of that market: its novel free movement DNA. That novelty has in turn been imprinted onto the free movement and residence rights linked to EU citizenship.
However, while the European Council rightly proclaimed that ‘reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union’ was going to be ‘the first priority for the negotiations’, Article 50 TEU does not make any provision for the rights of either of these categories or any reference to EU citizenship more generally. Article 50 itself requires the abrupt cessation of the application of the treaties two years after notification of the intention to withdraw from the Union, which would come about in a situation in which no provision for citizens’ rights had been agreed at all. The only safeguard for UK citizens in the treaty comes through the requirement that a state’s decision to withdraw from the Union must be in accordance with the former’s ‘own constitutional requirements’ (Article 50(1) TEU).
Can the substance of EU citizenship deliver something more than Article 50 in isolation requires? Addressing the future relationship of UK nationals to the EU and EU citizens to the UK as part of the broader future relationship negotiations is perfectly logical. Leaving the EU has consequences, some of which will be severe. It could not be otherwise. And we should not forget that it is the UK’s political, not legal, red lines that impoverish the options available. After all, legislation on the free movement and residence of EU citizens applies in the EEA context too (i.e. the free movement and residence rights associated with EU citizenship can be decoupled from that status).
Nevertheless, the profound implications of the shift from inside to outside seem inherently incongruous with having been inside. Efforts to translate this position to material legal rights are pushing at the edges of law and should be closely watched. For we will end up knowing much more about what EU citizenship does mean – and, conversely, what it does not mean – as all of this unfolds.
 This point can be traced by comparing the evolving positions evident in a series of Joint Technical Notes on citizens’ rights  See especially Article 9 of the Draft Agreement (19 March 2018)
University of Edinburgh
Prof Niamh Nic Shuibhne is Professor of European Union Law at the University of Edinburgh. She is Joint Editor of the Common Market Law Review. Her research focuses on substantive EU law from a constitutional perspective, in particular on free movement law.