Table of Contents: I. Introduction. – II. EU citizens and their family members: “autonomous” vs. “derived” residence rights. – III. Residence rights enjoyed by EU citizens as inalienable rights? – III.1. Residence rights of UK nationals and their family members in the EU27. – III.2. Residence rights of EU27 citizens and their family members in the UK. – III.3. Intermediary conclusion. – IV. Brexit and residence rights: an essential issue for any negotiated solution. – IV.1. Changing citizenship statuses at the EU level. – IV.2. Preserving residence rights for EU27 citizens/UK nationals and their family members. – V. Concluding remarks.
Abstract: One of the fundamental pillars of the European Union is the right of EU citizens and their family members to move freely between and reside in the different EU member States. In recent case law, the Court of Justice has made it abundantly clear that EU citizens derive these rights directly from their EU citizenship status, whereas their family members have only “derived” residence rights, which are dependent on the EU citizen having exercised his freedom of movement. The impact of Brexit on the free movement of persons between the UK and the remaining EU Member States has remained one of the most controversial and politically sensitive issues ever since the British people voted to leave the EU. This Article tries to shed some light on the legal arguments underlying this debate. On the one hand, it provides an overview of a number of arguments deriving from EU law or international law on the basis of which, according to some scholars, EU citizens and their family members would continue to enjoy the residence rights attached to citizenship after Brexit. On the other hand, it will analyse a number of legal principles which would, according to some scholars, have to be respected by any withdrawal agreement between the EU27 and the UK and which, arguably, provide a basis for continued residence rights after Brexit.
Keywords: Brexit – Court of Justice – EU citizenship – residence rights for family members – acquired rights – withdrawal agreement.
* Assistant Professor, University of Antwerp, and Senior Associated Research Fellow, Institute for European Law, University of Leuven, email@example.com.