Will UK Nationals Lose their EU Citizens’ Rights after Brexit?

By Christian Dadomo and Noëlle Quénivet

After the UK leaves the European Union, what will happen to UK nationals currently living in another European country? Will they be allowed to stay in those countries?  What about those UK nationals who were intending to move to another European country in the next few years?

Currently, UK citizens enjoy rights as European Union citizens. Those rights will disappear after the UK withdraws from the EU.  However, until the arrangements for the UK withdrawal and for its future relationship with the Union are fully set out under Article 50 TEU, neither the UK government nor the EU could strip UK citizens of EU citizenship and rights as this is a matter of EU law. However some of those citizens’ rights might reappear under those arrangements between the UK and the EU (as is the case, for instance, for the Swiss and EEA nationals).

What is EU citizenship?

EU citizenship was first created by the Maastricht Treaty in 1992.  It is now found in other European Treaties called the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).

These treaties state that any national of an EU Member State automatically becomes an EU citizen. Therefore, at the moment, UK nationals are also EU citizens.

EU citizenship is additional to national citizenship. This means that UK citizens (or any other citizen of the EU) do not lose their national citizenship by acquiring EU citizenship. They do, however, gain EU rights on top of those already enjoyed under their national citizenship.

Which rights do UK nationals enjoy as EU citizens?

The most fundamental legal rights enjoyed by EU citizens are these ones:

  • to move and reside freely in the territory of any other Member State;
  • to work, be self-employed and provide services in another Member State;
  • for ‘economically non-active persons’ to live in another EU State. This could include people like students, the retired or persons of independent means, as long as they do not become a burden on the social security system of the EU country in which they are living; and
  • not to be discriminated against on the ground of nationality.

UK nationals living in the EU also have political and other protective rights such as the rights to:

  • vote and stand at European and local elections;
  • take part in European Citizens’ Initiatives. This allows EU citizens to invite the European Commission to propose new legislation (for example the ‘Right2Water’ Initiative calling for legislation implementing the human right to water and sanitation);
  • diplomatic and consular protection by embassies and consulates of other EU Member States when travelling in non-EU countries;
  • petition the European Parliament; and
  • complain to the European Ombudsman against maladministration by an institution or body of the EU.

Will UK nationals lose their EU citizen status after Brexit?

The answer is a simple ‘yes’. As the status of EU citizen is only granted to nationals of EU Member States, UK nationals will lose their EU citizenship and their rights enjoyed as EU citizens once the EU Treaties stop applying to the UK ie:

  • when the withdrawal agreement enters into force or;
  • in the absence of such an agreement, two years after the withdrawal notification unless the UK and the European Council agrees to extend the negotiations period.

What rights will UK nationals within the EU have after Brexit?

UK nationals will be treated under EU law as non-EU citizens, that is third country nationals. Two scenarios are offered to them. Either they:

  1. are family members of an EU citizen (e.g. an (un)married partner, child or parent or grandchild or grandparent) and have extended rights. For instance, under Article 23of the Citizenship Directive, someone from the UK would still have the right to take up employment or self-employment in an EU Member State but that right would be conditional on being a family member of an EU citizen; or
  2. are not family members of an EU citizen in which case they will have own limited rights under EU Law. For example, they will have limited rights subject to a visa to move within the EU under the Schengen Agreements or the limited right to reside under the Long-Term Residents Directive 2003/109/EC. Further rights could be added under special agreements with the EU like the European Economic Area (EEA) Agreement or the agreements with Switzerland on free movement of persons.

All of this depends on the terms on which Brexit is negotiated. Should the UK become a member of the EEA or opt for the Swiss model of agreements, some of those rights will be retained without the full enjoyment of EU citizen status.

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