Prof. Dr. Dimitry Kochenov, Department of Sociology, University of Groningen
The Brexit referendum result is likely to mark one of the most radical losses in the value of a particular nationality in recent history.
A glance at the European Union (EU) Treaty makes clear that EU citizenship as such cannot possibly affect, legally speaking at least, the regulation of withdrawals from the Union: Article 50 TEU, which establishes the procedure to be followed by any withdrawing state, does not contain any EU citizenship-related conditions.
From the day when the UK eventually withdraws, UK nationals will be, by definition, not EU citizens any more. This means that UK citizens in the EU will have a default legal position inferior to Russians and Moroccans (whose countries have non-discrimination clauses in agreements with the EU). Besides losing all the well-known perks of EU citizenship ranging from free movement in the EU, including the right to work and settle anywhere in the Union without prior authorization, to political rights at local and European Parliament level in the country of residence, Britons abroad will also lose consular protection via the representations of other member states of the EU.
The loss of free movement and political rights will especially hurt. Once free movement is lost, UK nationals will only be able to work and reside in their own country. This is a cap on aspirations and possibilities. Once political rights at the European level are lost, the citizens of the UK will not be able to influence the development of European law, which will remain overwhelmingly important in the UK, as the Channel is unlikely to become a sea and the old trading ties will remain. Full sovereignty is only possible in the world of Realpolitik: as a junior partner the UK is bound to be a constant recipient of rules in a one-way relationship. The loss of political rights at the municipal level for all the UK citizens residing in the EU will mean that Britons in Spain, France and Italy will not have a say at all in local politics, even in the municipalities where their interests are considerable, turned from equal members of the local communities into mere guests.
UK citizenship’s position, as ranked by the Henley & Partners – Kochenov Quality of Nationality Index, could soon be declining. Applying the methodology of this index to the Brexit situation demonstrates a most likely loss of at least 30% of the UK nationality’s value — an overwhelming downgrade to the level of Argentinean and Chilean nationality. This is a more dramatic loss of value than war-ridden Ukraine and protest–shaken Bahrain have experienced over the last few years.
This situation is unquestionably bound to have political implications which will necessarily affect the negotiators in charge of the Brexit agreement with the EU. Absurd as it may sound, Paris, Rome, Amsterdam and Berlin could actually end up being off limits for those UK citizens who would like to overstay the 90 days of visa-free stay for foreigners the Schengen system permits.
The political repercussions of this are bound to be huge, so EU citizenship rights are bound to play an important political role in the context of the withdrawal negotiations, to avoid any full withdrawal consequences. The question is whether a dramatic loss of rights by the citizens on both sides of the newly-emerging EU border is an inevitable follow-up of a withdrawal of a member state from the Union. Could some solution be found to avoid it?
Any arrangement granting quasi-citizenship of the EU to the citizens of the post-Brexit UK will de facto result in affecting negatively the core considerations behind wanting to withdraw – however arcane and esoteric these can seem to a minimally informed observer – thus openly playing against the political objective of leaving the Union supported by 51.9% of voters. The resulting political balance here can be very tricky: how much can the real and tangible rights of UK citizens be cut in the name of the blurred and unclear rhetoric behind the case for withdrawal boasting no clear program, which actually won? This balance will be for the same elites who allowed the referendum in the first place to try to execute, keeping in mind that maintaining an EEA-like arrangement with the EU in the context of the free-movement of persons – i.e. winning a right to overstay 90 days in the Schengen area without a risk of being deported and barred from Europe for several years – will obviously have a very high price at the negotiating table with the EU aware of the possible domino-effect of any withdrawal. This price will necessarily at least include reciprocal arrangements for EU citizens in the UK. Negotiating with the remaining member states collectively makes it impossible for the UK to discriminate between the nationals of the remaining EU member states. This means that all the EU citizens in the UK will most likely stay where they are, enjoying a very similar – if not the same – level of protection.
Bilateral negotiations following Brexit could provide an alternative possibility, implying the introduction of full reciprocal free-movement arrangements bilaterally only with those EU member states where the majority of the UK expats reside, plus, perhaps, the most economically successful states. This approach is bound to be put on the table in any bilateral setting, given the relative mono-dimensionality of the flows of free movement of labor in the EU. It is not that UK citizens are all packing up to go to Slovakia or Bulgaria. The contrary is true. Dropping much of Eastern and some of Southern EU from the free movement arrangements could thus be presented by the negotiators as a reasonable way forward, to strike the right balance between the political goal of withdrawal and the need to make sure that the own citizens of the seceding state do not suffer a really serious blow to their rights. The consequences for countless individuals, should such an approach be chosen, will be drastic, a valid reason to prefer a strictly multilateral approach and built-in legal guarantees in the final arrangement, against any such bilateral moves in the future. The EU will most likely make any bilateral deals of this kind impossible and to make sure that the principle of non-discrimination on the basis of nationality among EU citizens of any origin is adhered to in full, including in the context of the UK’s new relationship with the internal market. Selective bilateral approaches will not work.
In the grand scale of things, the huge losses in terms of rights and the quality of nationality which the citizens of the UK are bound to experience now is but a cherry on top of the Brexit pie, the recipe of which is so difficult for any intellectually honest person to understand. The consequences of withdrawal will be harmful for many, without solving any problem at hand. Britain awoke to a new, much less rational world of inexplicable mysticism and the self-inflicted Argentinasation of its citizenship.
This contribution builds on the London School of Economics LEQS Paper No. 111, 2016: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2797612 For more information on the Quality of Nationality Index, please visit nationalityindex.com