Brexit will fuel citizenship arbitrage

—Peter J. Spiro

The unexpected result in the British referendum is hitting the news today like a thunderclap. As the financial markets tumble, few will escape Brexit’s consequences. But none will feel Brexit more than those whose employment and residential security have been contingent on the UK’s continued EU membership. An estimated 3 million citizens of other EU member states live in the UK. Meanwhile, 1.3 million Brits live in other EU member states.

For this population, Brexit spells uncertainty, at least. No more will moving across the Channel for work, study, and other purposes be almost as easy as moving across the Hudson River from New York to New Jersey. Getting another nationality will in many cases be the answer. Think citizenship insurance.

Free movement rights formerly guaranteed under the EU treaty regime will be up for grabs. Those who are allowed to stay will face visa applications, registration regimes, and other bureaucratic hassles. Others may face expulsion.

As EU citizens – a status that comes with citizenship in an EU member state — these individuals have taken advantage of free movement rights under which EU citizens can seek and secure employment in any other member state. Some others – retirees and students, notably – can move within the EU even without employment.

Many will be able to stay put. After all, there are many Americans who work in the UK and in Europe even though the US is not part of the EU. Professionals will no doubt be best off. The UK might negotiate free movement agreements on a bilateral basis. It will probably grandfather in a substantial subset of EU-citizen residents, on obvious fairness grounds. But given that increased intra-EU migration was a key factor in the Leave vote, some will be out of luck, and EU states may retaliate in kind.

But none of this will apply to those who have both UK citizenship and citizenship in some other EU member state. Dual citizens will be protected in both the EU and a separated Britain. Before Brexit there was little incentive for British citizens to acquire another EU citizenship (or the reverse) – there wasn’t any benefit. Now, there is.

Any Brit with a single grandparent born anywhere in Ireland can sign up for citizenship in EU-member Ireland. (In some cases a great-grandparent will do.) Last year, only 500 UK citizens applied for Irish citizenship under this “granny rule”. Expect that number to grow manifold this year. (The Irish passport agency’s twitter account – @PassportIRL – had a busy day.) As Irish citizens, these Brits will enjoy free movement rights anywhere in the European Union. And all British citizens resident in Northern Ireland are eligible for Irish citizenship, many of whom will now have reason to claim the status.

Others will be eligible to naturalize in the EU states in which they have been living. Eligibility will depend on the naturalization rules of the individual states. There has already been a spike in EU citizens applying for UK naturalization. A major question will be how pre-Brexit residency will satisfy naturalization residency requirements (usually five years).

Dual citizenship itself won’t be a problem for eligible individuals. The UK was one of the first states to formally accept dual citizenship, in 1947. Most European states have also come to accept the status. Even Germany, which once rejected dual citizenship absolutely (in 1974, its constitutional court deemed it an “evil”) allows it in many cases, especially for native-born German emigrants. Only Austria and a handful of Central and East European countries continue to terminate the citizenship of individuals who naturalize elsewhere. Otherwise, Europeans who acquire UK citizenship will be able to retain their original citizenship, too.

So the number of dual citizen Europeans will spike in Brexit’s wake. Those who are working cross-Channel will be no more inconvenienced than having to carry an extra passport in their bag. Even those who don’t have the immediate need will now have a reason to get the extra nationality, Brits especially, for purposes of tourism and other temporary travel.

But not everyone will be able to get citizenship insurance. Citizenship isn’t for the asking. The result will be haves and have-nots, some for whom Brexit will make no difference, some for whom Brexit will mean opportunities lost. Some Brits are lucky to have an Irish grandparent, some not. And it isn’t only in the Brexit context that dual citizenship will have its advantages. More Americans are rediscovering their Irish, Italian, and Greek roots for citizenship purposes. Hundreds of thousands of Argentines were able to escape the 2002 financial crisis there through Spanish and Italian nationality. Some exploit it for purposes of Olympic eligibility. Dual citizenship is becoming a fact of globalization, pointing to citizenship’s advantage – and its sometime arbitrariness.

Peter J. Spiro is Charles R. Weiner Professor of Law at Temple University. He is the author of At Home in Two Countries: The Past and Future of Dual Citizenship (NYU Press, 2016).

Feature image: EU United Kingdom 2016 Problem by Elionas2.CC0 Public Domain via Pixabay

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