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Fundamental No More? Dual Nationality and the Loss of EU Citizenship

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About The Author

Maya Moss (Regular Writer)

Maya holds an LLB from Durham University and recently completed an LLM in European Law at the University of Edinburgh. Her main interests lie in constitutional and European law, and issues of civil and political rights. A hopeless foodie, she enjoys listening to jazz and spouting useless Harry Potter trivia.

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There can be no daily democracy without daily citizenship.

Ralph Nader

We tend to view nationality and citizenship as interchangeable concepts, and the use of both in similar contexts is enshrined in EU law; Article 20 of the Treaty on the Functioning of the European Union (TFEU) confers ‘Citizenship of the Union’ to all those who hold nationality of an EU Member State. However, as noted by The Economist, ‘nationality’ tends to denote a status acquired by birth, marriage or descent, whereas ‘citizenship’ more specifically relates to a legal concept by which a state grants an individual rights and obligations. The status and meaning of European citizenship has been extensively debated, and its use varies from grand proclamations of Europeanness when participating in European elections, similar to traditional nationality, to the conferring and denial of legal rights in various social and political contexts.

The European Court of Justice (CJEU) has applied citizenship law to a range of scenarios, from cases of simple residence to national laws on naming children, with a slow but steady move to more and more extensive protection. As discussed in this article, however, in the recent case of Tjebbes & Ors v Minister van Buitenlandse Zaken [2019], the CJEU took a slight turn in its normally favourable – from the perspective of the EU – view of Union citizenship.

The case

Tjebbes concerned several individuals who had dual nationality, one of which was Dutch. All four applicants were considered to have lost their Dutch citizenship by virtue of having resided outside the Netherlands for more than ten years (pursuant to national legislation). The national court asked essentially whether EU law on Union citizenship, in conjunction with the EU Charter of Fundamental Rights, must be interpreted as precluding national legislation which provides for the loss of nationality by operation of law, resulting in loss of Union citizenship.

The CJEU emphasised that a Member State can legitimately view nationality as the ‘expression of a genuine link between it and its nationals’, and as such may withdraw that status where such a link is lost. However, national authorities must have ‘due regard’ of proportionality as concerns the consequences of the loss of nationality, both for the person concerned and, where relevant, his or her family members. National courts must be able to carry out an individual assessment of the consequences of the loss of nationality, to determine whether this ‘disproportionately affect[s] the normal development of… family and professional life from the point of view of EU law’.

The CJEU thus concluded that Member States are free to set this type of legislation, provided that the possibility exists for national courts to examine individual cases for any disproportionate effects of the loss of national, and thereby Union, citizenship. It also provided that affected persons must have the possibility of recovering their nationality in the context of an application for ‘a travel document or any other document showing their nationality’.

Comment

Union citizenship: background

It is worth noting that the way in which the CJEU has treated EU citizenship has varied between cases and over time, but ever since Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] it has made clear that it envisages Union citizenship to become a fundamental status, a proclamation later incorporated into the Citizenship Directive in Recital 3. Ruiz Zambrano v Office national de l’emploi [2011], a case which pushed the application of EU citizenship further, lay dormant for many years before being applied in three separate cases by the CJEU. While Union citizenship is a derived status, then, the CJEU has slowly pushed for its application in broader contexts, perhaps primarily to afford as wide a protection as possible, as this author has argued elsewhere.

Citizenship is often defined by reference to a ‘collection of rights and obligations’ which create a juridical identity. Traditionally, such a status is closely associated with the nation state, and to the notion of nationality. Clearly, Union citizenship differs from national citizenship, both in terms of its acquisition (and perhaps loss), and the rights and obligations associated with that status. One is only a Union citizen by virtue of nationality/citizenship of a Member State. Strictly speaking, then, EU citizenship is conferred by individual Member States, as opposed to through a centralised EU procedure. Additionally, EU citizenship is contingent upon its very ‘Europeanness’, in that its associated rights are only activated in cross-border situations (broadly interpreted by the CJEU as including situations where no movement has occurred, but individuals have links to more than one Member State; see e.g. Garcia Avello v État belge [2003]). EU citizenship therefore relies on the existence of multiple nation states, and borders between them, in order to be legally and practically effective. 

Some argue that this ought not be the case. Kostakopoulou has proposed a ‘Eurozenship’, thus disentangling EU citizenship from national membership, and arguing that the link between citizens and the EU is direct, i.e. rights are derived directly from the Treaties. She cites the fact that Treaty rights are not contingent upon Member State approval, and as such there is no reason why loss of Member State nationality should result in loss of ‘Eurozenship’; as well as the imminent loss of EU citizenship by UK nationals. Kostakopoulou contends that UK citizens who have ‘activated their fundamental right to free movement and residence’ will lose their EU citizen status without consent merely due to the preference of a slim majority.

Loss of EU citizenship

Going back to the case at hand, the CJEU allowed a Member State to revoke nationality by operation of law, in this case in the Netherlands, where residence outside the country for more than ten years may result in such an action. The CJEU thus concluded that loss of EU citizenship may indeed come as a result of decisions made by national authorities, in contrast to the view propagated by Kostakopoulou above.

The CJEU appeared deferential to national authorities, likely in an attempt to avoid infringing on Member State competences. The move has, however, been branded by Kochenov as ‘unwelcome’, and as ‘[downgrading] EU citizenship… to an unfriendly subscription service under the pretext of respecting the separation of powers’. He notes also that the particular circumstances of the case make the ruling especially difficult to adhere to; Dutch passports are valid for ten years (as opposed to the five when the national legislation came into effect), meaning that failure to renew a passport even before it has expired might result in the loss of citizenship if you live abroad.

Inconsistencies of the Court?

Although the CJEU did not express a view as to whether ten years, specifically, was a suitable time frame, its lack of comment to this effect, leaving such a determination entirely in the hands of the domestic court, risks creating particularly adverse circumstances for individuals affected. It is not the argument that the CJEU should necessarily have decided an actual time frame, but perhaps at least commented on whether ten years was in the range of an appropriate period of time.

Losing connection entirely with a state after significant time spent abroad may indeed be a genuine and reasonable reason for loss of that citizenship, including EU citizenship; indeed, Stephen Coutts writes that the judgment ‘underlines the link between Member State and Union citizenship’, highlighting the need to belong to a national political community in order to qualify as a Union citizen. However, the Court’s deferential attitude in Tjebbes marks a slight shift in tone from previous case law. In Ruiz Zambrano, for example, all governments which submitted observations considered the case to fall outside the scope of EU law simply because the child to which the case related, who had third country national parents, was resident in their country of nationality. Here, the CJEU found that Article 20 TFEU prevented national measures which may deprive ‘citizens of the Union of the genuine enjoyment of the substance of the rights’ gained from EU citizenship; as a result, the third country national parents must be permitted to stay in the EU, in order to allow for the continued enjoyment of the child’s Union rights. Zambrano was not cited for a long time, but suddenly re-emerged, particularly in Marín v Administración del Estado [2016]. That case concerned two children with dual nationality and Union citizenship who had never lived outside the EU. The third country national father had his temporary residence application rejected as he had a criminal record not yet removed from the national register. The CJEU held that the fact that the children had never moved did not mean the situation was internal, and still benefitted from Union protection. It is clear, then, that the Court has considered Union citizenship to be a wide right, available to protect in as varied circumstances as possible. This seems to change in Tjebbes.

Whether this is desirable or not is a separate matter; the fact remains that the Court seems acutely aware of how its judgment might have been received domestically, therefore taking a step away from its previously supportive stance towards citizenship. This backtracking seems to betray a failure of the CJEU to convince Member States of the hopefully named ‘fundamental status’ that is European citizenship, consistently put forward in an attempt by the CJEU to create an autonomous source of rights for those living in the EU. If EU citizenship truly creates the aforementioned ‘juridical identity’, it appears strange that such an identity is lost through lack of residence, and at the will not of the organisation which grants its associated rights, but simply a cog of that organisation, a Member State. ‘EU citizens’ works well as shorthand to denote all those with Member State nationality, but whether it will ultimately be capable of overtaking national citizenship as a fundamental status is becoming less and less likely.

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Tagged: Brexit, European Union, Human Rights, Immigration

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