Austrian legal test case offers British expats hope after Brexit

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Austrian legal test case offers British expats hope after Brexit

‘Unchartered territory’

“It is uncharted territory, but what we do know, thanks to Rottmann’s case, is that the European court requires member states to justify any infringement of EU citizenship rights,” she said in her article, published on The Conversation website on Tuesday.

“The court is clear that the consequences of such a decision for the person concerned need to be taken into account. This is where those who have been living abroad in Europe for years, who have retired there, who have raised their families there, should feel more at ease.

“The court will not easily allow their European Union citizenship rights to be withdrawn,” she said.

PhD on European Union citizenship

Wesemann holds a German law degree and an LLM in European Union Law from the University of Sussex and is a lecturer in law at The Open University. Her PhD research focusses on European Union citizenship and in how far it is uphold as a constitutional right by the Court of Justice of the European Union.

She points to Article 20 of the Treaty on the Functioning of the European Union, which is one of the two main treaties establishing the EU, states that every person holding the nationality of a member state shall be a citizen of the EU. 

“Taking this provision by its word means that as soon as Britain has successfully withdrawn its membership, Brits lose their EU citizenship,” she says.

However, more importantly, she states that it will be down to the remaining 27 member states – not Britain – to decide how they interpret this rule.

Brits abroad

“They will determine the status of Brits abroad and the rights that come with that status,” she said. “The Court of Justice of the European Union (CJEU) has dealt with a similar situation and passed a judgement that might help them make their case.”

Wesemann points to the case of Rottmann, who lost his Austrian nationality when he became a German citizen – as under Austrian law, nationality is automatically revoked if a person is naturalised elsewhere.

But it turned out that he had lied about his criminal convictions when applying for German citizenship. When the German authorities found out, they withdrew his citizenship, leaving Rottmann stateless.

“It is entirely up to the national government of each European Union member state to decide how individuals gain and lose nationality,” said Wesemann.

“The CJEU did not question that. But connected to the nationality of a member state is the status of European Union citizenship. It had to look into whether Rottmann could be stripped of his European citizenship, too,” she said

Criminal behaviour 

The court did eventually rule against Rottmann, but his case is still useful for Brits living abroad after Brexit. The CJEU did not allow Rottmann to keep his citizenship specifically because he had deceived the authorities. His criminal behaviour was what stood in his way.

“It was only his criminal behaviour in the naturalisation process that allowed the member states to effectively withdraw his European Union citizenship status,” said Wesemann in her article.

“This is where the situation of British people living abroad differs significantly. They will not have had their nationality withdrawn due to criminal behaviour.

“They would be finding themselves in a unique position, where the state whose nationality they hold withdraws from the European Union and consequently strips its citizens of their European Union citizenship, including all of the rights attached to it.”