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BREXIT

Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Brexit really does mean that Britons are no longer EU citizens. Claudia Delpero looks at whether there's any other way they can keep their rights.

Is new court ruling the end for Britons fighting to remain EU citizens?
A picture of the sign and logo of the Court of Justice of the European Union in Luxembourg on January 13, 2020. (Photo by JOHN THYS / AFP)

The Court of Justice of the European Union confirmed on Thursday that Britons lost EU citizenship when the UK left the EU, on 1st February 2020. 

It is the first time the EU’s top court has rules on the matter, after a number of legal cases challenged this specific Brexit outcome. The decision also sets a precedent should other countries decide to leave the bloc in the future. 

What has the EU Court decided?

The Court of Justice decided on a case brought by a British woman living in France.

Before Brexit, she could vote and stand as a candidate in her town of residence, Thoux. But after the UK withdrawal from the EU, she was removed from the electoral roll and excluded from the municipal elections that took place in March 2020, during the transition period.  

As the mayor refused her appeal to restore the registration, she took the case to the regional court in Auch, which agreed to request an interpretation of the rules to the EU top court. 

Julien Fouchet, the barrister supporting her and several other cases on the EU citizenship of British nationals, argued that the loss of EU citizenship and voting rights was disproportionate. It would also be contrary to the EU Charter of Fundamental Rights, given that the woman also lost her voting rights in the UK, having lived abroad for more than 15 years.

Alice Bouillez, who has lived in France since 1984 and is married to a French national, could have applied for French citizenship, but did not do so because she said “this was not necessary” before Brexit and, as a former UK official, she had taken an oath of allegiance to the Queen.

On Thursday the Court of Justice announced the decision about her case. The court ruled that the “possession of the nationality of a member state is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status.”

The court therefore confirmed that British nationals automatically lost their EU citizenship as a result of Brexit and, as a consequence, Britons also lost their voting and electoral rights in municipal elections in the EU (unless the country where they live set different rules). 

What is EU citizenship?

EU citizenship was introduced by the Treaty of Maastricht of 1992, when borders were opening and the bloc was integrating economically after the end of the Cold War. 

Under the treaty, every person holding the nationality of an EU member state is a citizen of the Union. EU citizenship is additional and does not replace nationality, the treaty specifies. But this creates the first form of a transnational citizenship that grants rights across borders.

EU citizens have the right to access each other’s territory, job market and services under the principle of non-discrimination. If they are economically active, they have the right to reside in other EU states and be joined by family members, access healthcare at the same conditions of nationals (for emergency treatment also when travelling temporarily), obtain social security benefits and see their professional qualifications recognised.

Beyond free movement, at the core of EU citizenship there are also political rights, such as participating in the European Parliament election, voting and standing as candidates in municipal elections when living in other EU countries, receiving consular protection from other EU states outside the EU, and taking part in European Citizens’ Initiatives asking to the EU to legislate on certain matters. 

Which EU citizenship rights have Britons lost with Brexit? 

For British citizens who were living in the EU before Brexit, the Withdrawal Agreement protects some of these rights. Britons covered by deal have their residence, access to work and education, healthcare, social security and qualifications secured, but only in the country where they were living before Brexit.

But the right to free movement in other EU states, consular protection in third countries, and the political rights attached to EU citizenship were lost, the Court confirmed. 

For British citizens in the UK, the trade and cooperation agreement has preserved some social security rights and, in theory, the possibility to have professional qualifications recognized when moving to an EU country. These provisions however lack details and may take a long time before they work in practice. 

As the “European Union” no longer features on British passports, the possibility to access EU lanes at airports to skip passport control queues has also vanished. 

“The loss of those treasured rights has been clear to those of us living in the EU from the early days of Brexit. But for Brits in the UK, the realities of life outside the EU, and the consequences of Brexit, are only just dawning. Long queues at the borders, roaming charges, obstacles to working abroad, etc. are the new reality,” said Sue Wilson, Chair of the group Remain in Spain. 

While she said the court’s decision was “no real surprise,” she argued that “this is not the Brexit the public were promised, or that the majority voted for.”

Can British citizens get some of these rights back?

Julien Fouchet was disappointed at the Court decision and promised to continue the legal fight, bringing the case at the European Court of Human Rights (which is not an EU institution). 

Other two cases on the matter of EU citizenship for British nationals are still pending at the Court of Justice of the EU. One of them aims to determine whether EU citizenship is a “fundamental status” that cannot be removed but Thursday’s decision could have already provided the answer.

Another option to reconsider some of the rights is the renegotiation of EU-UK trade agreement, when it will be reviewed in 2025. 

Meanwhile, the EU is revising the rules for non-EU citizens living in EU countries on a long-term basis, making it easier to move across borders. 

Applying for citizenship is so far the only option to regain voting rights, although not all EU countries allow dual nationality. 

Sue Wilson, who has long campaigned for the UK to stay in the EU, said: “There is only one way to restore the loss of our rights, and that’s to rejoin the single market, rejoin the customs union, and eventually, rejoin the European Union… Until that day, we will continue to be second class citizens whose rights have been diminished for the sake of an ideology.”

Member comments

  1. Just FYI, the hyperlink in “the EU is revising the rules for non-EU citizens living in EU countries on a long-term basis, making it easier to move across borders” won’t show up for me as a subscriber to TheLocal.fr. It says it requires a separate subscription to the Norway version of The Local. It would be lovely if you could fix that.

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TRAVEL NEWS

‘Double processing time’: Austria and Germany fear non-EU travellers face border delays

Germany, Austria and another of other countries in Europe's Schengen area admit they fear delays and insufficient time to test the process ahead of new, more rigorous EU border checks that will be introduced next year, a new document reveals.

'Double processing time': Austria and Germany fear non-EU travellers face border delays

Schengen countries are tightening up security at the external borders with the introduction of a new digital system (EES) to record the entry and exit of non-EU citizens in May 2023.

The EES will enable the automatic scanning of passports replacing manual stamping by border guards. It will register the person’s name, type of the travel document, biometric data (fingerprints and facial images) and the date and place of entry and exit. The data will be kept in a centralised database on a rolling three-year basis that is re-set at each entry. 

What the EES is intended to do is increase border security, including the enforcement of the 90-day short-stay limit for tourists and visitors. EU citizens and third-country nationals who reside in a country of the Schengen area will not be subject to such checks.

READ ALSO: Foreigners living in EU not covered by new EES border checks

But given its scale, the entry into operation of the system has been raising concerns on many fronts, including the readiness of the physical and digital infrastructure, and the time required for border checks, which could subsequently cause massive queues at borders.

A document on the state of preparations was distributed last week by the secretariat of the EU Council (the EU institution representing member states) and published by Statewatch, a non-profit organisation that monitors civil liberties.

The paper contains the responses from 21 member states to a questionnaire about potential impacts on passenger flows, the infrastructure put in place and the possibility of a gradual introduction of the new system over a number of months.

This is what certain the countries have responded. Responses from Denmark, Spain and Sweden do not appear in the report but the answers from other countries will be relevant for readers in those countries.

READ ALSO: What the EU’s new EES border check system means for travel

‘Double processing time’

Austria and Germany are the most vocal in warning that passport processing times will increase when the EES will become operational.

“The additional tasks resulting from the EES regulation will lead to a sharp increase in process times”, which are expected to “double compared to the current situation,” Austrian authorities say. “This will also affect the waiting times at border crossing points (in Austria, the six international airports),” the document continues.

“Furthermore, border control will become more complicated since in addition to the distinction between visa-exempt and visa-required persons, we will also have to differentiate between EES-required and EES-exempt TCN [third country nationals], as well as between registered and unregistered TCN in EES,” Austrian officials note.

Based on an analysis of passenger traffic carried out with the aviation industry, German authorities estimate that checking times will “increase significantly”.

France expects to be ready for the introduction of the EES “in terms of passenger routes, training and national systems,” but admits that “fluidity remains a concern” and “discussions are continuing… to make progress on this point”.

Italy is also “adapting the border operational processes… in order to contain the increased process time and ensure both safety and security”.

“Despite many arguments for the introduction of automated border control systems based on the need for efficiency, the document makes clear that the EES will substantially increase border crossing times,” Statewatch argues.

‘Stable service unlikely by May 2023’

The border infrastructure is also being adapted for collecting and recording the data, with several countries planning for automated checks. So what will change in practice?

Austria intends to install self-service kiosks at the airports of Vienna and Salzburg “in the course of 2023”. Later these will be linked to existing e-gates enabling a “fully automated border crossing”. Austrian authorities also explain that airport operators are seeking to provide more space for kiosks and queues, but works will not be completed before the system is operational.

Germany also plans to install self-service kiosks at the airports to “pre-capture” biometric data before border checks. But given the little time for testing the full process, German authorities say “a stable working EES system seems to be unlikely in May 2023.”

France will set up self-service kiosks in airports, where third-country nationals can pre-register their biometric data and personal information before being directed to the booth for verification with the border guard. The same approach will be adopted for visitors arriving by bus, while tablet devices such as iPads will be used for the registration of car passengers at land and sea borders.

Italy is increasing the “equipment of automated gates in all the main  airport” and plans to install, at least in the first EES phase, about 600 self-service kiosks at the airports of Rome Fiumicino, Milan Malpensa, Venice and in those with “significant volumes of extra-Schengen traffic,” such as Bergamo, Naples, Bologna and Turin.

Switzerland, which is not an EU member but is part of the Schengen area, is also installing self-service kiosks to facilitate the collection of data. Norway, instead, will have “automated camera solutions operated by the border guards”, but will consider self-service options only after the EES is in operation.

Gradual introduction?

One of the possibilities still in consideration is the gradual introduction of the new system. The European Commission has proposed a ‘progressive approach’ that would allow the creation of “incomplete” passenger files for 9 months following the EES entry into operation, and continuing passport stamping for 3 months.

According to the responses, Italy is the only country favourable to this option. For Austria and France this “could result in more confusion for border guards and travellers”. French officials also argue that a lack of biometric data will “present a risk for the security of the Schengen area”.

France suggested to mitigate with “flexibility” the EES impacts in the first months of its entry into service. In particular, France calls for the possibility to not create EES files for third-country nationals who entered the Schengen area before the system becomes operational, leaving this task to when they return later.

This would “significantly ease the pressure” on border guards “during the first three months after entry into service,” French authorities said.

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