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The Wrong Saviour?

We have shown that there are ways to secure ‘acquired residence rights’ by European citizens living in the UK and British nationals living elsewhere in the Union, by relying on the Kuric doctrine. Residence rights for all other categories than family members of Union citizens and primary carers of minor Union citizens resident in the EU cannot be upheld on the basis of European law. The rights of residence linked to free movement - a most celebrated acquis and beloved by many mobile Union citizens - will not fall prey to the idiosyncrasies of the electorate in a member state, nor held hostage by static citizens as many fear. They will be saved, but not by the workings of the acquis. The most cherished entitlements of Europeans will need to be saved by international law.

As far as the content of Union citizenship is concerned, (some) rights may be frozen, but the rights that may be frozen are not rights of the kind that would make Union citizenship a supranational legal status. Indeed, we are dealing with rights, the ratio personae of which does not coincide with that of Union citizenship. Residence rights as, in general, freedom of movement are, repetita juvant, not pertaining exclusively to the citizens of the Union. Their personal scope is both over- and under-inclusive in relation to the category of Union citizens. Many have long been unconvinced by their supposed supranational character. In fact, freedom of movement is not recognised unconditionally to Union citizens (as underscored by Case C-333/13 Dano EU:C:2014:2358) and a number of third country nationals are covered by the acquis in relation to freedom of movement. Third country nationals holding a valid residence permit or visa have the right to move freely within the Schengen area for up to three months within a six-month period. The rights in relation to taking up residence for a period exceeding three months in another member state is covered by specific legal instruments, depending on their status, and subject to conditions in national legislation (e.g. blue card, intracorporate tranfers, long-term residents, researchers, students).

Legal positions founded on the ‘mutual commitment to open their respective bodies politic to other European citizens and to construct a new form (...) of political allegiance on a European scale’ - to use the phrasing of Poaires Maduro in the Rottman case - are rightly called ‘supranational.’ Such supranational rights associated with Union citizenship - first and foremost, the right to vote and stand in elections in the European Parliament and the right to the Citizens’ initiative - will be lost with the status. Those whose nationality is no longer linked to a member state, due to the withdrawal of that State, lose their ‘fundamental status’ as previously conceived. They cannot invoke civis europaeus sum. The question thus arises: Is it lawful for a member state to strip their own nationals of Union citizenship? This is a question regarding the extension, not the intension of membership in the EU. So let us move on to investigate this second dimension of citizenship of the Union in the next chapter.

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