In Grzelczyk the CJEU defined EU citizenship as a fundamental status that enables nationals of Member States to enjoy the same treatment in law. In Zambrano the close correlation between this fundamental status and the enjoyment of substantive rights was highlighted. Since then scholars have tried to understand what the legal value of this status is. This paper argues that Brexit and more particularly the situation of non-UK EU citizens in the UK puts in relief many of these academic debates.
First, Brexit has allowed for the emergence of a certain type of European civitas as in its wake support for the EU has increased amongst the population of many Member States. Further, the reaction of EU nationals in the UK has shown a rather unified front against Brexit and in support of the EU. It might however be that the population’s support is short-lived and based on economic and personal grounds rather than on true political adherence to European norms and values on which a European civitas should be founded. Yet, the stance of the European Parliament demonstrates the EU’s willingness to protect its citizens, thereby signalling the importance of the EU citizenship as more than just a mere aspiration.
Second, Brexit shows that the status as such is important in legal terms for EU citizens in the UK will have a different, a settled status (whilst keeping some of their rights as EU citizens). It is through the loss of status that a loss or diminution of rights is made possible. And this loss of status does not only affect the rights of EU citizens but also of their family members who benefit from derived rights. As the EU citizenship status is lost the rights attached to it become negotiable. This new settled status irremediably breaks the link between status and rights. In other words, the status is the starting point of the enjoyment of rights as EU citizens.
Third, Brexit exacerbates the duality of EU citizenship: a status in its own right as well as a complementary over-layer. For EU citizens in the UK the loss of EU citizenship shows that status exists as such: without it, rights are not automatic, they can be negotiated and even completely renegaded. Yet, EU citizens in the UK will still benefit from EU citizenship status on the territory of the EU or when, for example, presenting themselves to the consulate of an EU Member State abroad. In this instance, the EU citizenship is additional to their nationality and their settled status in the UK.
Fourth, as the rights of EU citizens in the UK will be enshrined in an international treaty between the EU and a third-country the ‘remains’ of what used to be EU citizenship will find their way in international law. Other treaties concluded by the EU do not refer to the treatment of EU citizens and thus the agreement between the EU and the UK marks a milestone in how the EU views its citizens outside the EU. After all, such agreement between the UK and the EU is very much akin to the law relating to the treatment of aliens.