Identity theft

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An effective remedy for the arbitrary removal of European citizenship could be found in strengthening the European economy, so it works for the benefit of all citizens.

While undergoing ever stricter checks and controls on their movement in Europe, UK nationals will have plenty of time to ponder how exactly they lost their European Union citizenship, possessed since 1993, which – among many other things – guarantees the right to move and reside freely in EU states.

It was something of a legal vanishing trick. No-one consented to give up their European citizenship, and there was no formal procedure to take it away, with the checks and safeguards necessary before national citizenship can be removed. In 1948, Article 15 (2) of the Universal Declaration of Human Rights specified that “No one shall be arbitrarily deprived of his nationality”, and today the words “nationality” and “citizenship” are used interchangeably. The Council of Europe’s own European Convention on Nationality, dating from 1997, treats the two terms as synonymous.

The EU is firmly committed by Articles 2 and 3 of the Treaty on European Union to the rule of law, the respect for and protection of human rights and the strict observance and development of international law. How then could EU citizenship itself be removed arbitrarily from individuals who possess it, without their consent and without any due process at all?

The answer is that the EU played no role. According to the Court of Justice, a decision of the UK authorities was solely responsible. In the words of the Court in Case C-499/21 (Silver and Others v the Council) “the loss of the status of citizen of the European Union, and consequently the loss of the rights attached to that status, is an automatic consequence of the sole sovereign decision taken by the United Kingdom to withdraw from the European Union, by virtue of Article 50(1) TEU, and not of the Withdrawal Agreement or [the Council decision approving it].”

But here the mystery deepens. Which sole sovereign decision by the United Kingdom? And when? If not the Withdrawal Agreement, of January 2020, it must have been a decision prior to that date.

Was it the referendum on UK membership of the EU, which the government held in June 2016? But, if so, the consequences for EU citizenship were not explained to anyone; and nor was the mechanism of an advisory referendum capable of altering the legal rights of individuals.

Was it the notification of intention to leave the EU which the government transmitted to the European Council in March 2017, under Article 50(2) TEU? But that only began a process of negotiated withdrawal, and as such, according to the Court of Justice in 2018 in Case C-621/18 (Wightman), was revocable until the final Withdrawal Agreement entered into force, or else the two-year cut-off period laid down in Article 50(3) expired.  

Or might it have been internal UK legislation, adopted at some point between 2016 and the 2020 entry into force of the Withdrawal Agreement? But, if so, the government took no action to notify affected individuals, consult them, seek their consent or put in place any procedure or mechanism allowing them to challenge or query the removal of their own European citizenship.

And here the mystery deepens further. During this entire period the UK remained a member state of the EU, subject to EU law like any other. For that reason the UK had to participate in the European Parliament elections of 2019, despite notifying its intention to leave two years earlier.

EU member states do not have carte blanche when it comes to removing EU citizenship. According to the settled case-law of the Court of Justice, the fundamental importance of that citizenship for individuals means that, although member states are responsible for laying down the conditions for the acquisition and loss of their own nationality (and therefore of EU citizenship), those powers must be exercised with due regard to EU law.

Under normal circumstances, if, as a result of a national law, losing the nationality of a member state might entail the loss of EU citizenship, the Court, applying the principle of proportionality, requires a detailed examination by the authorities and courts of that state of the consequences of the loss of EU citizenship for the individual affected, and for he or she to be informed of the possibility of the loss, and what steps they might take to prevent it, or to regain it if lost (Case C-689/21: Udlaendinge og Integrationsministeriet (Perte de la nationalité danoise)).

The removal of EU citizenship from individuals by the sole action of the UK government was not only arbitrary – in the sense that it lacked any semblance of due process – it lacked this due regard to EU law too. Nobody was notified about anything, or offered the slightest chance to take remedial action.

From the point of view of the shambolic UK governments at the time maybe it seemed like a good idea, or a quick fix. But for everyone else – including the professional musicians dear to the heart of Prime Minister Keir Starmer – the real-life consequences remain severe. The rights and freedoms associated with EU citizenship, given directly to individuals under EU law, were simply taken from them. This was (and is) contrary to the Charter of Fundamental Rights of the EU, which states at Article 47 that “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article”.

Under whatever form any future UK/EU relationship takes, this problem needs addressing.

How might there be favourable conditions for its resolution? Article 9 TEU states, “In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.”  

Focusing on the equality of citizens is terrain on which a fruitful UK/EU relationship could be rebuilt. It would strengthen the resilience of democracy, under attack everywhere in Europe, in line with the agreed NATO defence objectives of ensuring civil preparedness and resilience against external threat. And it would counter the economic stagnation and rising discontent which, internally, feeds the appeal of the far right.

Ever since the adoption in 1949 of the Statute of the Council of Europe, citizens’ individual political and democratic rights have been given formal legal protection. Strengthening the European economy so their economic circumstances do not diverge greatly from their political rights would strengthen democracy too.

To do this, the European economy as a whole – including that of the UK – needs higher and more sustained levels of public and private investment, and therefore growth, and for that investment to be spread as widely and evenly as possible.

Positive action here would make a greater reality of the principle of equality. And it could help in remedying a continuing breach of the fundamental rights of citizens.