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BREXIT

Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Brexit really does mean that Britons are no longer EU citizens. Claudia Delpero looks at whether there's any other way they can keep their rights.

Is new court ruling the end for Britons fighting to remain EU citizens?
A picture of the sign and logo of the Court of Justice of the European Union in Luxembourg on January 13, 2020. (Photo by JOHN THYS / AFP)

The Court of Justice of the European Union confirmed on Thursday that Britons lost EU citizenship when the UK left the EU, on 1st February 2020. 

It is the first time the EU’s top court has rules on the matter, after a number of legal cases challenged this specific Brexit outcome. The decision also sets a precedent should other countries decide to leave the bloc in the future. 

What has the EU Court decided?

The Court of Justice decided on a case brought by a British woman living in France.

Before Brexit, she could vote and stand as a candidate in her town of residence, Thoux. But after the UK withdrawal from the EU, she was removed from the electoral roll and excluded from the municipal elections that took place in March 2020, during the transition period.  

As the mayor refused her appeal to restore the registration, she took the case to the regional court in Auch, which agreed to request an interpretation of the rules to the EU top court. 

Julien Fouchet, the barrister supporting her and several other cases on the EU citizenship of British nationals, argued that the loss of EU citizenship and voting rights was disproportionate. It would also be contrary to the EU Charter of Fundamental Rights, given that the woman also lost her voting rights in the UK, having lived abroad for more than 15 years.

Alice Bouillez, who has lived in France since 1984 and is married to a French national, could have applied for French citizenship, but did not do so because she said “this was not necessary” before Brexit and, as a former UK official, she had taken an oath of allegiance to the Queen.

On Thursday the Court of Justice announced the decision about her case. The court ruled that the “possession of the nationality of a member state is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status.”

The court therefore confirmed that British nationals automatically lost their EU citizenship as a result of Brexit and, as a consequence, Britons also lost their voting and electoral rights in municipal elections in the EU (unless the country where they live set different rules). 

What is EU citizenship?

EU citizenship was introduced by the Treaty of Maastricht of 1992, when borders were opening and the bloc was integrating economically after the end of the Cold War. 

Under the treaty, every person holding the nationality of an EU member state is a citizen of the Union. EU citizenship is additional and does not replace nationality, the treaty specifies. But this creates the first form of a transnational citizenship that grants rights across borders.

EU citizens have the right to access each other’s territory, job market and services under the principle of non-discrimination. If they are economically active, they have the right to reside in other EU states and be joined by family members, access healthcare at the same conditions of nationals (for emergency treatment also when travelling temporarily), obtain social security benefits and see their professional qualifications recognised.

Beyond free movement, at the core of EU citizenship there are also political rights, such as participating in the European Parliament election, voting and standing as candidates in municipal elections when living in other EU countries, receiving consular protection from other EU states outside the EU, and taking part in European Citizens’ Initiatives asking to the EU to legislate on certain matters. 

Which EU citizenship rights have Britons lost with Brexit? 

For British citizens who were living in the EU before Brexit, the Withdrawal Agreement protects some of these rights. Britons covered by deal have their residence, access to work and education, healthcare, social security and qualifications secured, but only in the country where they were living before Brexit.

But the right to free movement in other EU states, consular protection in third countries, and the political rights attached to EU citizenship were lost, the Court confirmed. 

For British citizens in the UK, the trade and cooperation agreement has preserved some social security rights and, in theory, the possibility to have professional qualifications recognized when moving to an EU country. These provisions however lack details and may take a long time before they work in practice. 

As the “European Union” no longer features on British passports, the possibility to access EU lanes at airports to skip passport control queues has also vanished. 

“The loss of those treasured rights has been clear to those of us living in the EU from the early days of Brexit. But for Brits in the UK, the realities of life outside the EU, and the consequences of Brexit, are only just dawning. Long queues at the borders, roaming charges, obstacles to working abroad, etc. are the new reality,” said Sue Wilson, Chair of the group Remain in Spain. 

While she said the court’s decision was “no real surprise,” she argued that “this is not the Brexit the public were promised, or that the majority voted for.”

Can British citizens get some of these rights back?

Julien Fouchet was disappointed at the Court decision and promised to continue the legal fight, bringing the case at the European Court of Human Rights (which is not an EU institution). 

Other two cases on the matter of EU citizenship for British nationals are still pending at the Court of Justice of the EU. One of them aims to determine whether EU citizenship is a “fundamental status” that cannot be removed but Thursday’s decision could have already provided the answer.

Another option to reconsider some of the rights is the renegotiation of EU-UK trade agreement, when it will be reviewed in 2025. 

Meanwhile, the EU is revising the rules for non-EU citizens living in EU countries on a long-term basis, making it easier to move across borders. 

Applying for citizenship is so far the only option to regain voting rights, although not all EU countries allow dual nationality. 

Sue Wilson, who has long campaigned for the UK to stay in the EU, said: “There is only one way to restore the loss of our rights, and that’s to rejoin the single market, rejoin the customs union, and eventually, rejoin the European Union… Until that day, we will continue to be second class citizens whose rights have been diminished for the sake of an ideology.”

Member comments

  1. Just FYI, the hyperlink in “the EU is revising the rules for non-EU citizens living in EU countries on a long-term basis, making it easier to move across borders” won’t show up for me as a subscriber to TheLocal.fr. It says it requires a separate subscription to the Norway version of The Local. It would be lovely if you could fix that.

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BREXIT

What happens if you overstay your 90-day limit in Italy?

If you're visiting Italy from a non-EU country your time here is limited, unless you have a visa - but what happens to people who overstay and how strictly are the rules really enforced?

What happens if you overstay your 90-day limit in Italy?

The 90-day rule has long applied to non-EU nationals like Americans, Canadians and Australians and since Brexit it also applies to Brits.

However it’s not always clear what happens to people who overstay, and whether the rules are being strictly enforced on the ground. 

What is the rule?

Non-EU nationals, including Brits, can stay for 90 days out of every 180 in the EU without needing a visa or a residency permit. This can be in the form of one long stay or several short stays.

The limit is for time spent within the EU, so you cannot simply move to a different EU country, you need to leave the Bloc altogether and go to a non-EU country.

This does not apply to people who live in Italy and have a residency card. 

Brexit: How Brits can properly plan their 90 out of 180 days in Italy and the Schengen zone

If you want to stay longer than 90 days – either because you are moving to Italy full-time or because you want longer visits – you will need to get a visa.

You can find full details on the types of visa HERE, but the key thing is that visas must be applied for in advance from your home country – you cannot come to Italy and then apply in order to extend your 90-day stay.

What are the penalties for people who overstay?

If you spend more than 90 days in the EU or Schengen zone without a visa or residency permit then you are officially an overstayer. And unlike the pre-EU days when passport control consisted of a man in a booth with a rubber stamp, scanning of all passports on entry/exit of the EU makes it pretty easy to spot overstayers.

This is set to become even more stringent when the EES scheme comes into effect next year – full details on that HERE

READ ALSO: Visas and residency permits: How to move to Italy (and stay here)

The EU lists a range of possible penalties although in practice some countries are stricter than others.

Within the system, anyone who overstays can be subject to the following penalties:

Deportation – if you are found to have overstayed, countries are within their rights to either imprison you and deport you, or give you a certain number of days to leave. In practice, deportation is rare for people who aren’t working or claiming benefits, they are more likely to be advised of the situation and told to leave as soon as possible.

Fines – fines can be levied in addition to other penalties and vary according to country. In Italy, those found to have overstayed their visa as a result of border checks conducted while they are voluntarily leaving the country of their own accord are not subject to any fine, but those caught overstaying their visa on Italian soil theoretically face both an expulsion order and a fine of between €5,000 and €10,000.

READ ALSO: What type of visa will you need to move to Italy?

Entry ban – countries can impose a complete ban on re-entry, usually for three years although it can be longer. A complete ban is usually only put in place for people who have over-stayed for a significant amount of time.

Difficulties returning to the Schengen area – even if you avoid all of the above penalties, the overstay alert on your passport will make it more difficult for you to return to the EU, and this applies to any EU or Schengen zone country, not just the one you over-stayed in. People who have this alert on their passport are likely to face extended checks at the border and may even be turned back. You will also likely encounter difficulties if you later apply for a visa or residency.

People who simply stay in an EU country without securing residency become undocumented immigrants and will not be able to access healthcare or social security provisions. If caught, they face deportation.

How is Italy really enforcing these rules?

Among EU countries Italy has a reputation for being among the less strict, and deportations are rare for people who are not working or claiming benefits, unless they have been in Italy for many years without the correct papers.

If it’s a question of simply over-staying by a few weeks it’s very unlikely that police will come to your home and deport you.

However, that doesn’t mean that there are no consequences of your over-stay – what’s likely to happen is that you will be caught next time you leave Italy.

Passports are stamped and scanned on entry, which means that border officials can see how long you have been in the country – if your arrival date was longer than 90 days ago you are likely to be flagged as an overstayer.

While in Italy this shouldn’t lead to a fine, there’s a possibility you may be banned from re-entering the country. 

A re-entry ban can be either for a limited time period or indefinitely and even if you avoid a ban your passport is likely to be stamped as an over-stayer, which can lead to complications for further travel anywhere within the EU. 

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