The lost citizens of Europe

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THE LOST CITIZENS OF EUROPE

David Harrison

In a Europe where shared democratic values are under threat an effective remedy should be found for the loss of common European citizenship.

Under the rubric “Putting people at the centre of the European Union-United Kingdom relationship”, paragraph 12 of the Common Understanding at the UK/EU summit of May 2025 states that: “The United Kingdom and the European Commission share the view that it is in the mutual interest to deepen our people-to-people ties, particularly for the younger generation.” Work towards a youth mobility, or youth experience, scheme is therefore to be part of the UK/EU “reset”.

Until recently all these young people shared a common EU citizenship, with the same rights and freedoms guaranteed by EU law. How did they become divided from one another in the first place?

The short answer, of course, is Brexit. But the long answer is more complicated. In its judgment in June 2023 in the appeal case Silver and others v Council of the European Union (C-499/21) the Court of Justice of the EU held that UK nationals did not actually have their EU citizenship removed by the UK/EU Withdrawal Agreement of 2020, as widely assumed (including by the EU’s own General Court). Instead, EU citizenship was removed by a unilateral national decision of the UK, having nothing to do with the EU.

In the precise words of the Court of Justice: “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 decision at issue.” A legal action by private individuals seeking judicial review by the Court of the EU Council decision adopting the Withdrawal Agreement was for that reason inadmissible, since the loss of EU citizenship “results solely from the United Kingdom’s sovereign decision to withdraw from the European Union, pursuant to Article 50(1) TEU.”

The judgment means that EU citizenship – a pure creation of EU law, under which rights and freedoms under the EU Treaties have been directly vested in individuals ever since entry into force of the Treaty of Maastricht in 1993 – can be removed from them by a simple national decision of a Member State, without the agreement of the EU.

But by which national decision, exactly? The Court did not say. Perhaps by the referendum held by the UK government in June 2016 (although, if so, voters were not told of its consequences for their EU citizenship). Or perhaps by the formal notification of intention to leave the EU which the UK government transmitted to the European Council in March 2017.

At no point, however, did the UK authorities of the time consult individuals about the loss of their own EU citizenship; or seek their consent to remove it; or warn them that this loss might happen; or put in place any legal review or appeal mechanism like those normally required if national citizenship is to be removed from a person. Nor was there any examination of the situation of individuals affected on grounds of proportionality – the normal requirement under EU law where the loss of nationality of a Member State might lead to the loss of EU citizenship.

So who was responsible for this rather massive error? Certainly not the individuals affected, who had absolutely no say in what happened to their EU citizenship. Not the young people whose enforced division has become a renewed focus of attention. And, according to the Court of Justice, not the EU either.

The chaotic, shifting and divided UK governments which oversaw the referendum and its aftermath had little or no interest in consulting individuals in the UK about the loss of their own legal rights, and probably gave the matter not the slightest thought.

So can anything now be done? Under Article 47 of the Charter of Fundamental Rights of the EU, everyone whose rights and freedoms guaranteed by the law of the Union are violated should have the right to an effective remedy before an independent and impartial tribunal, and be entitled to a fair and public hearing within a reasonable time. Everyone should also have the possibility of being advised, defended and represented, with legal aid if necessary.

The key word is “everyone”. The rights and freedoms of EU citizenship, guaranteed by EU law, have been violated and not yet found an effective remedy within a reasonable time - because no such independent and impartial tribunal exists.

One could, however, be set up, as part of the UK/EU “reset”. It could be of mixed UK/EU membership; be a UK tribunal; be a specialised EU court; or comprise legal experts from neither the UK nor the EU, such as from the Council of Europe.

A tribunal would not focus on the merits or otherwise of Brexit, but on the lawfulness and proportionality of the procedures which, without consent, removed Treaty-based rights and freedoms from individuals possessing them.

Is an effective remedy for a violation of rights possible? In parallel cases where the loss of nationality of a Member State entails the loss of EU citizenship, the Court of Justice has held that within a reasonable period of time an individual should have the right to retain, or recover from the outset (“ex tunc”), that nationality and EU citizenship – starting from when he or she is informed by the authorities of the imminence of the loss, and the right to apply to maintain or recover nationality and citizenship.

But what if an individual has received no notification from the authorities about the loss of EU citizenship, has never given any consent and never had any chance to take corrective action, or appeal? This amounts to arbitrary treatment, contrary to the 1948 Universal Declaration of Human Rights, and an effective remedy would be a right to apply within a reasonable time to maintain or recover that EU citizenship - similar to the applications which can be made by individuals living abroad to maintain or recover their lapsed national citizenships.

The Treaties provide a legal opening for a creative solution along these lines. Under Articles 2 and 3 TEU, the EU’s aim is to promote peace; its values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights; and the well-being of its peoples. And in its relations with the wider world, the EU should uphold and promote its values and interests and contribute to the protection of its citizens, the protection of human rights and the strict observance and development of international law.

These values and interests are clearly shared with today’s UK government, as the intensive cooperation over the defence of democratic Europe demonstrates. In a Europe of shared values and respect for human rights the barriers to common citizenship, for those individuals who wish to recover it, should not be insuperable.

Moreover, the potential for swelling the numbers of Europe’s citizens could be a significant boost and a vote of confidence in the future of European democracy. This could prove a very useful asset indeed in today’s dangerous world.