Brexit and the free movement of persons: what is EU citizenship really about?

This contribution aims to critically consider the challenges posed to the very notion of Union citizenship by the Brexit process. In order to do so, I will first sketch the legal framework introduced by the Withdrawal Agreement (Section 2), highlighting its most problematic deficiencies. I will then turn to the consequences of loss of status, and loss of rights, for the very meaning of Union citizenship. In particular, after having considered the problems facing those citizens who are not able to gain Brexit status (Section 3), I focus on the broader consequences for Union citizenship arising from the choices made in the Withdrawal Agreement. Thus, in Section 4, I argue that there are two approaches to Union citizenship – a minimalistic approach, where Union citizenship simply confers some (minimal) rights on those who are economically inactive; and a more fundamental/identitarian approach, where Union citizenship truly constitutes a new status for its beneficiaries. Both approaches are legally and politically plausible, but the assimilation of British citizens resident in the EU to third country nationals indicates that the EU institutions have adopted a minimalistic reading of Union citizenship. Furthermore, the denial of rights to free movement for British citizens covered by the Withdrawal Agreement indicates that the point of reference for rights to free movement is not the internal market as a whole, but simply the Member State of destination of the free mover (Section 5). This minimalistic approach seems to have been endorsed also by the Court in the recent Préfet du Gers ruling, where it was held that British nationals, even if they had moved before the date of withdrawal, lost the status of Union citizen and all rights associated with that status (including free movement rights) on the date of withdrawal. This interpretation might well have broader consequences for the way we construe and understand Union citizenship which would no longer be a ‘fundamental status’ but rather just a slightly ‘privileged’ status.