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The Kuric Doctrine

The case concerns some of the so-called izbrisani of Slovenia who had been stripped of their prior status as permanent residents, and most often also turned into stateless following the missed naturalisation in the newly independent Slovenia in the early 1990s.

When Slovenia became independent, it automatically extended citizenship to any person who had been its ‘internal citizen’ but not to former Socialist Federal Republic of Yugoslavia citizens holding the citizenship of one of the other republics of the former Yugoslav federation. Permanent residents did not acquire Slovenian citizenship automatically: They had a window for opting for citizenship. Those who did not apply or missed the deadline were simply erased from the registry of permanent residents. The group of izbrisani was created: It consisted of those who lost their previously acquired rights of residence in Slovenia (Mindus 2009).

After a long saga in the Slovenian constitutional court, the matter came before the Court in Strasbourg where, on 3 March 2009, it was ruled that ‘the decisions taken by States in the immigration sphere can in some cases amount to interference with the right to respect for private and family life secured by Art. 8 § 1 of the Convention’ and that ‘it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of private life within the meaning of Art. 8’ (§ 351). The applicants were nationals of both the Yugoslav republic and one of the other republics of Yugoslavia that were not Slovenia. All had permanent residence in Slovenia as citizens of the Yugoslav Republic, which gave them - in the eyes of Strasbourg - ‘a stronger residence status than long-term migrants.’ The punch line of Kuric is that ‘once you have lawfully established residency, you keep the rights of residence, even if the legal status of either your home State or your host State changes and, as a result of this change, your new nationality status alone would no longer give you a right to residence’ (Vidmar 2013,

p. 28).

Although the facts in Kuric and Brexit differ,14 the premise remains: Residency was lawfully established prior to change in legal status and, if the UK will proceed with withdrawal from the EU, that right of residence will be kept, even if the nationality status alone would no longer give a right of residence. Regardless of whether or not the person concerned resides in EU territory upon independence, by virtue of the Kuric doctrine, the residence status will be frozen. However, ‘the further development of that status after independence - defrosting of the residence status - will certainly be different if the residence has been frozen in the territory of a member state or in the territory of the exited state’ (Gonzalez Marrero 2016, p. 208). The Kuric formula would ‘cement’ the existing residence rights, but would not extend the applicability of European law to the territories exiting the EU.

The implications for second country nationals in the UK and for British citizens in the Union will be different. The freezing of rights for the first category will depend, once exit is effected, exclusively on domestic law’s reading of the boundaries imposed by international law. Generally, there will be issues raised in relation to the enforcement in the UK of the withdrawal treaty. The protection offered by the Kuric formula to the second group has limitations. Its protection is territorially restricted. It only guarantees those rights attached to the residence status as far as the person concerned does not move to another member state. Therefore, being granted the status of long-term resident third country national is to be preferred to merely relying on the Kuric formula: Long-term resident third country nationals are not chained to one member state.15 They exercise freedom of movement akin to that of Union citizens as they acquire a right to reside in member states other than the one that granted the status.

 
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