Union citizens’ rights against their own Member State after Brexit
| Published date | 01 June 2020 |
| Date | 01 June 2020 |
| Author | Nicolas Bernard |
| DOI | 10.1177/1023263X20908761 |
| Subject Matter | Articles |
Article
Union citizens’ rights against
their own Member State
after Brexit
Nicolas Bernard*
Abstract
The treatment by the United Kingdom of Union citizens remaining on its territory after Brexit
and conversely that of UK nationals by EU27 Member States on theirs has given rise to much
discussion and analysis. By contrast, there has been comparatively little systematic and
detailed exploration of the question of the impact of Brexit on the exercise of Union citizens’
rights against their own Member State. It is an issue which is for the most part ignored in the
current Withdrawal Agreement. The purpose of this article is to show that this blind spot
opens up a potential gap in legal protection of the rights of Union citizens, which is likely to
remain regardless of the outcome of the Brexit negotiations and whether a withdrawal
agreement is concluded or not. The paper discusses the extent to which the adversarial
nature of the withdrawal process has contributed to this failure to address this issue and the
ways in which courts could step in to provide the legal protection that political processes
were unable to deliver.
Keywords
Brexit, union citizenship, citizens’ rights, reverse discrimination, Article 50 TEU, EU law
1. Introduction
The consequences of the withdrawal of the United Kingdom from the European Union on the rights
of Union citizens is clearly an important aspect of the Brexit process. Indeed, right from the start,
safeguarding those rights was identified in the first set of European council Guidelines for Brexit
negotiations as the ‘first priority’ for these negotiations. ‘Effective, enforceable, non-
* Queen Mary University of London, School of Law, London, UK
Corresponding author:
Nicolas Bernard, Senior Lecturer in Law, Queen Mary University of London, School of Law, Mile End Road, London, E1
4NS, UK.
E-mail: n.bernard@qmul.ac.uk
Maastricht Journal of European and
Comparative Law
2020, Vol. 27(3) 302–324
ªThe Author(s) 2020
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DOI: 10.1177/1023263X20908761
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discriminatory and comprehensive’ guarantees were to be provided to enable Union citizens to
‘exercise their rights through smooth and simple administrative procedures’.
1
It also seems to have been on the whole a somewhat easier and less controversial aspect of the
Brexit negotiations. While discussions on the other two main topics addressed in the initial phase
of the process, namely settlement of the UK’s financial obligations and avoidance of a physical
border on the island of Ireland were protracted, there was a greater element of consensus between
the negotiators on how to address the question of citizens’ rights after Brexit, notwithstanding the
persistence of some divergent perspectives on specific aspects right up to November 2018, when
agreement was reached on a Withdrawal Agreement.
2
While negotiations were re-opened in Autumn 2019 following the coming into office of a new
UK government in the summer, the revised text of the Withdrawal Agreement agreed in November
2019
3
has not amended Part Two of the Agreement,
4
in which the provisions devoted to citizens’
rights are contained. Both sides of the negotiations would seem therefore to regard the consensus
previously achieved on citizens’ rights as acceptable.
Yet the Withdrawal Agreement would potentially leave a significant gap in the protection of
citizens’ rights after Brexit. Union citizenship endows citizens and their families with rights not
only vis-`a-vis other Member States but also with respect to their own Member State. While not
perfect, the Withdrawal Agreement has much to say about the former. In relation to the latter,
however, the Agreement is largely silent. The adversarial nature of the Article 50 TEU process has
tended to obscure this dimension of Union citizenship. The focus has been on the UK protecting the
rights of their nationals residing in the EU27 Member States and on EU institutions protecting
the rights of EU27 citizens residing in the UK without much consideration being given as to how
the rights of individuals vis-`a-vis public authorities within their own camp, so to speak, would be
affected.
The Withdrawal Agreement has not yet been ratified and it is still unclear at time of writing
5
whether it will be and, if so, when.
6
Whatever happens on this front is unlikely to make much
difference to the present enquiry. If a withdrawal agreement — whether the current one or a yet
further revised one — is eventually ratified by both sides, it would in all likelihood contain
identical or very similar provisions on citizens’ rights to those in the currently agreed text. A
fortiori, if the UK were to leave the EU without a withdrawal agreement, citizens’ rights would be
even less protected.
This article aims to assess the extent of the gap in the protection of citizens’ rights after Brexit
resulting from the failure to sufficiently consider the implications of Brexit of the relationship
between nationals and their own Member States. It is structured as follows. In the first place, the
1. European Council, ‘European Council (Art. 50) guidelines for Brexit negotiations’, Consilium (2017), https://www.
consilium.europa.eu/en/press/press-releases/2017/04/29/euco-brexit-guidelines/, para 8.
2. Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union
and the European Atomic Energy Community, [2019] OJ C 66I/1.
3. Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union
and the European Atomic Energy Community,[2019] OJ C 384I/1 (the Withdrawal Agreement).
4. Articles 9 to 39 of the Withdrawal Agreement.
5. November 2019.
6. The main difficulty is the lack of clarity of the position of the British Parliament, particularly with the perspective of a
general election in December 2019. It should be noted that ratification on the EU side will require the consent of the
European Parliament. While it cannot be entirely ruled out that Parliament may, at the last minute, threaten to withhold
its consent subject to additional concessions on citizens’ rights, there are no signs at present that it intends to do so.
Bernard 303
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