Brexit Litigation
A Review of Patricia Mindus, European Citizenship after Brexit: Freedom of Movement and Rights of Residence, Palgrave Macmillan. 2017. 123pp. £20.00 (HB). IBSN: 978-3-319-51773-5
The United Kingdom (UK) government has never been wholly comfortable with the migration and residence rights which are acquired with European Union (EU) citizenship. It is, therefore, somewhat ironic that the UK citizenry is poised to play an instrumental role in the eventual de-coupling of EU citizenship entitlements from national citizenship.
Faced with an “...involuntary loss of citizenship en masse...” (Mindus, 2017: 78), UK citizens “who have relied on free movement in making their life choices” (Mindus, 2017: 35) are left with little option than to follow the path taken by others, and, in the short time left before the UK government’s planned date of exit from the EU, call to aid the “...English court...courts in member states in which they are residing, or...the European Court of Justice” (Mindus, 2017: 81) in their efforts to secure legal entitlements which surely cannot be extinguished by a once in a life-time popular vote?
Despite having a far more tenuous claim to the various entitlements of EU citizenship than those most affected by Brexit, individuals like Martinez Sala [1998], Baumbast [2002] and, most notably, Rottman [2010] have initiated “a series of legal positions” (Mindus, 2017: 11) which make abundantly clear that neither words contained in treaties nor action of government pursuant to any treaty are insulated from legal scrutiny.
Through the use of “real-world cases” (Mindus, 2017: 31) in chapter three of the work (see especially 32-34 & 37-38), Mindus provides a range of scenarios with which our potential Brexit litigants might identify. As regards the question of what specific issues our would-be Brexit litigants will plead before these courts, we can do no worse than to turn for an answer to Patricia Mindus’ compact and intriguing monograph. Between its covers are contained some well conceived and succinctly drafted legal questions in relation to which any one of our group of British nationals would be able to assert an individual and personal interest.
In this review I identify those legal questions found in Mindus’ work which I suggest will form key components of an escalating series of legal actions before the courts, which will seek to mitigate the legal consequences of Brexit. I will also add a few legal observations of my own. R v Secretary of State for Exiting the European Union [2017] is the model for this anticipated legal onslaught. This is because the litigants in that case never lost sight of the need to clearly articulate the nexus between the questions of constitutional competence, which the courts were asked to decide, and concrete and personal legal rights of residence and free movement. According to the report of the UKSC decision in R v Secretary of State for Exiting the European Union [2017]:
The applicants are supported in their opposition to the appeal by a number of people, including (i) a group deriving rights of residence in the UK under EU law on the basis of their relationship with a British national or with a non-British EU national exercising EU Treaty rights to be in the United Kingdom, (ii) a group deriving rights of residence from persons permitted to reside in the UK because of EU rights, including children and carers, (iii) a group mostly of UK citizens residing elsewhere in the European Union, (iv) a group who are mostly non-UK EU nationals residing in the United Kingdom, and (v) the Independent Workers Union of Great Britain” [UKSC, 2017: 8].
For Mindus, the position of the litigants in R v Secretary of State for Exiting the European Union [2017] establishes an important marker between the political and the legal; and:
Despite the unquestionable existence and importance of the political dimension, the primary focus is on the legal nature of the consequences of Brexit for the laws governing nationality, EU citizenship status and connected rights (46).
Although wary of abstract questioning on the causes and consequences of Brexit, Mindus is not deterred from posing the fundamental question of whether Article 50 of the Treaty of Lisbon is in fact legally capable of doing the work it desires/purports to do, for:
It was long supposed that the only way to lose European citizenship for a European citizen was by losing member state nationality...with Brexit the nationality of the former member state is not lost, but Union citizenship would be (78).
Thus, our legal interrogation must begin at the very beginning of the Brexit journey, which would be located with the coming into force of the Treaty of Lisbon. Could the simple enactment of Article 50 really have effected the legal closure of questions about the relation between Union membership and citizenship entitlements? As we shall see, Mindus concludes that the triggering of the Article 50 withdrawal clause does not necessarily entail the “...material implication...that rights of citizens disappear” (54).
Before we explore Mindus’ proposition concerning the possibility that a member state might withdraw from the EU without the nationals of that member state surrendering EU citizenship entitlements – a proposition which sits at the heart of her work - something needs to be said of the manner in which the UK government has sought to bring about the withdrawal of the UK from the EU. Mindus speaks of an arbitrary loss of Union citizenship, which Brexit threatens, and suggests that a loss of citizenship so occasioned might be inconsistent with principles of international law (80-81).
For me the position is clear. It could never have been intended that a legal relationship could be severed by a referendum result which, in and of itself, has no legal force, thereby potentially bringing an end to entitlements which are nothing but legal in character. The nature of the losses which UK citizens will potentially suffer are summarised by Mindus at pages 21 and 22. As I have argued elsewhere, the UK has deployed Article 50 in ways which were not intended, and it should be subject to the usual restraints levelled against a subject of a legal order who abuses a legal right which the legal order confers upon that subject (Tuitt, 2017).
However, the prospects of the UK government’s future actions in relation to Brexit being subject to judicial restraint are exceedingly slim. That being so, the surest avenue for our group of British citizens is for them to identify entirely with the third country nationals which a “non-negotiated Brexit” would undoubtedly “transform” them into (Mindus, 2017: 35). Such an alignment would entail a complete disavowal of the fundamentally racialised distinction between third country nationals and others resident in EU states, and the differential treatment which the racialised categories have authorised. For there can be no doubt that it is the legal creativity of third country nationals and their legal advisers which have caused Union citizenship entitlements to “come to be interpreted as covering a higher number of persons and situations” (Mindus, 2017: 19). The Court of Justice of the European Union, more than any other institution within the EU, has shown itself to be willing to weaken the nexus between Union citizenship entitlements and possession of the nationality of one of the EU’s member states (Mindus, 2017: 90). In many landmark decisions, the Court of Justice of the European Union has “extended the personal scope of entitlements” (Mindus, 2017: 19).
Mindus recounts these legal histories and victories in chapter five (between pages 66-72) of her monograph. Here she attends also to the function of Article 8 of the European Convention on Human Rights 1950 in securing residence rights of third country nationals, based on the argument that a refusal of residence will, in some cases, result in a breach of the human right to the enjoyment of private and family life. Repetition of these case histories is not warranted here, but Mindus’ argument as it develops is supported in particular by the decision of the court in the case of Rudy Grzelczyk [2001] in which it was stated that Union citizenship is the fundamental status (and thus contains the fundamental rights) of nationals of EU Member States. The court’s declaration in Rudy Grzelczyk [2001] together with the fact that “The European Court of Justice...stated back in 1963 in the case of Van Gend en Loos that such rights are part of individuals’ ‘legal heritage’ (Mindus, 2017: 50), prompted Mindus to question whether citizenship rights are capable of “outlasting the legal provisions that created it? Or would such a reading violate the very spirit of exiting...” (50).
In aligning themselves with third country nationals, our group of UK citizens may find unexpectedly little opposition from the UK government. The UK government’s scepticism over EU migration and residence rights was at its most vocal in the lead up to the referendum. In stating the UK’s intention to take back control of its borders, the claim that free movement rights had exceeded or supplanted the founding Treaties was a constant refrain. However, once into withdrawal negotiations, the UK government immediately sought to demand that UK citizens and second country nationals resident in the UK exercise free movement rights after the end of the transition period is reached, and the operation of Article 50 (3) means that the EU Treaties no longer apply to their situations. This demand is one of the actions of the UK government which prompted me to argue that the UK’s use of the legal right contained in Article 50 is abusive. Specifically, in the case of a demand for free movement post Brexit, the UK sought to introduce an element of extortion into the Article 50 bargain. For the present, however, it simply needs to be noted that in its currently vulnerable state the UK government is ripe to be co-opted into the joint objective of the Court of Justice of the European Union and third country nationals to, at the very least, maintain the current status quo pertaining to the residence rights of third country nationals.
But Mindus has ambitions for UK citizens post Brexit which far exceed the incremental extension of the residence rights of third country nationals. Indeed, she goes so far as to intimate quite radical objectives of future Brexit litigation, as captured in the following:
The conventional wisdom has it that Union citizenship follows national citizenship like a shadow follows the body that carries it along. From here springs the commonly made assumption that entitlements vanish when access criteria are no longer fulfilled...This instinctive reaction leads to the often-repeated claim that no treaty rights can thus be guaranteed to those who are ipso facto no longer European citizens (49).
Mindus places heavy reliance on the case of Rottman [2010] in concluding that “the question whether an individual possesses the nationality of a Member state is no longer settled solely by reference to national law” (16). Discussed substantively between pages 81-82 & 88-92, Mindus is keen to emphasise that the decision of the Court in Rottman was not limited to situations in which statelessness is the result of a decision on nationality, and therefore, in principle, the court’s reasoning in Rottman extends to the Brexit situation (89).
Rottman concerned a German national who renounced his original birth nationality of Austria when acquiring German nationality through naturalization. He was then exposed to the loss of his acquired German nationality. The reason for the threat to his German nationality was that after having been granted German citizenship the German authorities discovered that Rottman had criminal convictions which he wrongfully and knowingly failed to disclose. In Rottman’s case a situation of statelessness would have emerged without the intervention of the Court of Justice of the European Union. The court determined that Rottman’s situation fell within the scope of EU law. Rottman’s right to nationality (in this case acquired German nationality) became ultimately a question of EU law and not (as hitherto thought) a question of national law.
Mindus, along with other EU law experts, sees in Rottman a “case of great constitutional importance” (89). Commenting on the broader EU law scholarship on nationality and Union citizenship, Mindus states:
The Rottman judgement points to a re-ordering of the relationship between member states’ nationality and Union citizenship in favour of the latter...observers of the successive jurisprudence by the Court of Justice on Union citizenship were not surprised to discover the activism of Rottman. The readiness of the Court to dare take a further step in this ‘holy’ domain of the member states could easily have been foreseen...the Court has shown itself prepared to influence nationality laws in the case of a clear breach of Union law (89/90).
Since no court could have foreseen the “Brexit...novelty...an automatic and collective lapse of status for Union citizens of exclusively British nationality” (Mindus, 2017: 35), the time is surely ripe for the core principles of Rottman to be considered in light of the specificities of the UK’s planned withdrawal from the European Union. Yet this “novelty” this “loss of citizenship...that, however, does not create statelessness and is likely to be tolerated under public international law” (Mindus, 2017: 78) exposes both the strengths and the limitations of litigation as a means of vindicating personal rights. So great is the potential loss that individual legal action must be complemented by collective legal action. Thus Mindus turns to the “major innovation that the Treaty of Lisbon added to the list of entitlements associated with Union citizenship...the European Citizens’ Initiative...” (19). This she discusses at pages 92-94, noting all of the challenges attendant on invoking the citizens’ initiative, which include the need for one million signatories drawn from a minimum of seven member states.
Ultimately, Mindus does not argue the case for the UK to remain in the European Union, but she does vehemently argue against the “need to sacrifice Union citizens’ rights to allow Brexit” (106). Much more effective than piecemeal litigation is for the “citizenry of the Union to enact itself as a ‘body politic’ and call for the ‘inter-citizenship’ distinctive of any composite republic” (Mindus, 2017: 106). This with the aim of preserving the rights of those made vulnerable through a threatened, involuntary loss of Union citizenship and its associated entitlements.
It is Mindus’ conscious aim to present the arguments in the book on the assumption of a non-negotiated Brexit, “...since there is no guarantee that any future agreement would have terms that are favourable to all affected” (2). I draw this review to a close with some reflections on how Mindus’ work is to be read in light of the present stage of negotiations.
Not surprisingly, where international law is clear on the duties imposed on a state whose actions initiate a potential loss of citizenship, the UK government has been at least formally compliant. Three such duties are identified by Mindus in chapter five. First and foremost is the duty to reach a negotiated solution (Mindus, 2017: 63-64). It is unlikely that the relationship between the UK government and the EU’s lead negotiator on Brexit, Michel Barnier, will ever be cordial, but some advancement has been made from the time of intense criticism over what was perceived to be an uncooperative and evasive approach by the UK toward its financial commitments to the European Union, and, more generally, the lack of a coherent exit plan. In light of Mindus’ preoccupation with free movement and residence rights, it is worth noting that the UK government has been least successful in evidencing a good standard of compliance with the duty to reach a negotiated settlement in the area of transitional immigration arrangements.
That the UK presents satisfactory proposals relating to citizenship post Brexit is a condition precedent of any discussion over future trading and other relationships between the EU and a post EU membership UK. The point at which there is likely to be an acceptable compromise relates to those individuals who have/will have exercised free movement rights at any time up to the UK’s withdrawal. They will retain residence rights, although it is not yet entirely clear whether those claiming residence rights will need to make a formal application. Ideas of a form of associate citizenship have been mooted, whereby UK nationals would individually apply for EU citizenship. These are woefully incomplete and inadequate proposals – in view of the fact that we are already half-way through the two year transition period.
The second core duty is to inform persons directly affected by a loss of citizenship of the consequences to them of this loss. This should be achieved in a timely fashion, and has the important objective of ensuring that citizens are actively engaged in the political/legal revolution which eventually will lead to their altered status (Mindus, 2017: 64-65). The final duty is what Mindus refers to as the “right of option” (65-66), which entails giving citizens a choice on how they will respond to the potential loss, for example, in cases of dual nationality. How the performance of this duty will play out in the Brexit situation is far from clear. Mindus suggests, with little apparent optimism, that “in the case of Brexit...a choice ought to be offered in view of easing naturalisation for UK nationals in certain member states” (65).
It is Patricia Mindus’ expressed hope that scholars and other interested parties respond to the “political volatility” and the “lack of relevant precedents” (45) pertaining to the Brexit situation by rejecting “the more traditional or mainstream” (45) “comparative legal readings” (49) of citizenship and associated rights. To this I would add that, with the UK’s planned exit now less than a year away, the legal community (the judiciary included) needs to be much more open to supporting novel legal challenges, including those which in other less exacting times may be dismissed as being merely academic.
References
Baumbast v Secretary of State for the Home Department [2002] ECR 1-7091.
European Convention on Human Rights 1950, ETS 5
R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant) [2017] UKSC 5.
Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 3, 2007, 2007 O.J. (C 306) 30 [hereafter Lisbon Treaty].
Case 26/62 Van Gend en Loos [1963] ECR 1.
Case C-85/96 Martinez Sala v Freistaat Bayern [1998] ECR 1-2691.
Case C-184/99 Rudy Grzelczyk [2001] ECR 1-6193.
Case C-135/08, Janko Rottman [2010] ECR 1-1449.
Tuitt, Patricia, The UK’s General Strike: Brexit and Critiques of Violence, 2.11.2017, patriciatuitt.com