I know that it looks as if we will soon put the Court of Justice of the European Union (CJEU) behind us forever. But I suspect that we will always have to keep half an eye out for its judgements, even if we are well out of the EU - and not only because of specific Brexit-related judgments expected in the near future. A judgement last week gave us a clue why.
Since the Brexit referendum, many UK citizens (Leavers among them?) have applied for citizenship of another EU Member State to which they are entitled through marriage or descent, in order to preserve their EU rights. And this week the CJEU delivered a judgement in relation to EU nationals who live outside the EU and have a second non-EU citizenship. This could apply in future to the group of our own citizens I have described.
The case had nothing to do with Brexit. It is also specific to the particularities of Dutch passport and immigration law. It is called Tjebbes and Others v Minister van Buitenlandse Zaken (Case C-221/17).
It concerned a group of Dutch nationals, whether born in the Netherlands or outside it, who had acquired Dutch nationality in different ways. Their two other common factors, apart from their Dutch nationality, was that they also all had the nationality of another non-EU country, and did not live in the EU.
Their separate applications for a Dutch passport were turned down on the basis that Dutch law says that ‘an adult shall lose his Netherlands nationality … if he also holds a foreign nationality and if, after attaining his majority and while holding both nationalities, he has his principal residence for an uninterrupted period of 10 years outside the Netherlands … and outside the territories to which the [EU Treaty] applies …’
The CJEU was asked, among other things, whether EU law permits EU citizens to lose their EU rights in this way.
The Court looked at the reasons behind the law. They found that the Dutch legislature sought to introduce a system to avoid, among other things, the undesirable consequences of one person having multiple nationalities. Another of the objectives was to preclude people from obtaining or retaining Dutch nationality when they do not, or no longer have, any link with the country.
The Court found that it is legitimate for a Member State to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality. They also found that the lack of a genuine link between the parents of a child who is a minor and the Member State concerned can be understood, in principle, as a lack of a genuine link between the child and that Member State.
These are important considerations, because we know that immigration is on the political agenda of all Member States, and indeed is supposed to have been a driving factor behind our own upheaval. Even if the Member State of which you may have second nationality has no such rule at present, it could be introduced in the future, possibly particularly so after the success of the Dutch government in this case. I assume that most governments are tightening their rules on immigration and nationality in the current climate, and not loosening them.
Overall then, the Court’s decision was that the Dutch government could legitimately act in the way it had, despite the loss of citizenship and consequent EU rights. Obviously, this was in the context of all the applicants having a second nationality on which they could fall back.
But there was a powerful caveat. The loss of Member State nationality by operation of law would be inconsistent with the principle of proportionality if the national rules did not permit at any time an individual examination of the consequences of that loss for the person concerned from the point of view of EU law, including a possible reversal of the decision.
The kind of disproportionality envisaged by the Court as possibilities included consequences which might affect the normal development of the person’s family and professional life from the point of view of EU law (for instance, those needed to retain genuine and regular links with members of family, or to pursue a professional activity). These consequences must not be hypothetical or merely a possibility, though.
In other words, all UK citizens with a second EU nationality should become acquainted with the detail of the nationality law of their second Member State, and keep an eye on its future development, since loss of citizenship may come about now or in the future in circumstances similar to those outlined in this case.