Introduction

Having covered the border dynamics of empire and commonwealth, this chapter focusses on continental bordering and the role of law. The scalar approach shifts the focus from empire to continent for two primary reasons: firstly, to analyse the dynamics and tensions between national and continental bordering and, second, to identify how supra-national citizenship can to some extent facilitate or, in the case of its loss, prohibit access to human and citizenship rights. Within continents or large regional blocks, borders can be reconfigured or erased to create zonal free-movement areas where there are no longer any border crossings. Normally, such areas have similar levels of economic development. The role of the law is to create categories of control within these regions. It determines who comes within the force of immigration control and who is exempt.

As seen in the previous chapter, the Windrush generation were targeted as a category by immigration control. Another category of residents in the UK excluded suddenly from secure status are EEA nationals through Brexit (2016 onwards). The Citizens’ Rights Directive 2004/38/EC (also sometimes called the ‘Free Movement Directive’) sets out the conditions for the exercise of the right of free movement within the EU. Long-term residents from the rest of Europe who could enter and stay in the UK without having to seek immigration permission under free-movement agreements within the EU could no longer do so freely after Brexit.

Many commentators and human rights activists point out that the Windrush generation were treated far worse than EU nationals in the UK during Brexit in terms of legal options to continue to reside in the UK (Escandell and Ceobanu 2024). Setting aside any comparisons about the extent of suffering of different groups of people, many EU nationals also struggled with the adverse consequences of Brexit.

One such example is that of Mr Melargo, a young Italian national who was detained in the UK. He had lived in the UK before Brexit and had made a late application to remain in the country using the Brexit EU settlement scheme set up for the millions of EU citizens living in the country before the UK withdrew from the bloc in 2021. He held a Home Office certificate explicitly stating he has a right to travel in and out of the country while officials were still processing his application to live and work in the country post-Brexit (O’Carroll 2024). Mr Melargo was a UK resident working in the UK. Yet he was separated from his Ukrainian partner and put on a plane to Venice by Border Force officials. This kind of deportation demonstrates the new-found precarity of many EU nationals in the UK. Thus, some EU nationals also experienced racialised exclusion in ways comparable to that of past exclusions of other nationals. Further, there are many racial minority citizens in EU nation states who had migrated to the UK and had then become vulnerable. Other third-country partners and family members also lost secure status because their EU national partner became displaced or precarious because of Brexit.

Above all, although EU nationals are usually depicted as high-end, professional and privileged migrants, they also include poorer migrants (many from Eastern Europe) who are seeking better life opportunities in other EU member states. It is wrong therefore to depict EU nationals as a single block of a completely different population group. When placed under immigration control, they have many similar vulnerabilities as other migrants.

The UK in the EU

In order to understand how continental re-bordering has affected EU nationals let us examine how it has materialised in the UK. Brexit is an instructive tale about bordering, de-bordering and re-bordering for other countries within the EU as well as other neighbouring states around the globe which have achieved varying degrees of economic integration through sub-regional and regional economic and trade agreements. It is in these regions that free movement zones are more likely to flourish. The deeper the integration, the greater the likelihood of finding relatively liberal freedom of movement provisions between states. However, the integration of markets is not at similar levels worldwide. The lowest level of integration is characterised by the internal removal of trade barriers and is called a free trade area, for example, the North American Free Trade Agreement between Canada, the United States and Mexico (Suliman 2014). The next level would be a customs union, for example, the Caribbean Community. The third level is when both labour and capital can move, for example, the Southern Common Market in South America, or the Trans-Tasman Travel Arrangement between Australia and New Zealand (Lakos and Szabó 2025).

In some regions a few countries may be more advanced in integration than others. In Africa, some regional blocs have lifted (to a large extent) restrictions in cross-border movements, for example, the East African Community and the Economic Community of Western African States (Okolo 1985). In Asia, the free movement of labour, which is limited to skilled labour, is one of the core elements of the Association of Southeast Asian Nations (ASEAN) Economic Community’s single market and production base. ASEAN allows practitioners in some professions to practise in other member states (Jurje and Lavenex 2015). The cross-border movement is usually of a temporary nature, and as it only relates to skilled labour it does not really take down borders for most people of the region. At the highest level there is an almost full economic union which then leads to integration beyond just movement. The EU is an example of such an arrangement. Similarly, the Nordic Passport Union allows citizens of the Nordic countries – Iceland, Denmark, Norway, Sweden and Finland – to travel and reside in another Nordic country without any travel documentation or specific documentation requirements. Since 25 March 2001, all five states have also been part of the Schengen Area. Most Schengen Area countries are part of the EU while all of the Nordic countries have strong links to the EU too, thereby creating a wider region of cooperation. Hence, internal borders have become largely collapsed within the EU. However, the integration of people and national politics at a level commensurate with the collapse of EU internal borders was not quite achieved within the EU, perhaps contributing to the exit of the UK. Migration played a significant part in this exit. We shall examine it in detail in this chapter to understand how it operates to include or exclude people.

We focus on bordering in Europe via the EU because arguably it has facilitated the highest level of integrated free movement across several nation states and also because Europe as a continent has had to reinvent itself over time. It has had to project itself as a distinct and unique continent despite not being a geographically separate continent from Asia. Western Europe, particularly, has presented itself as the cradle of human enlightenment and the pinnacle of human culture and civilisation, a view consolidated throughout the globe because of the wealth and power acquired from colonialism. Santos and Boatcă (2022, 106) critique this ‘archetypical continent’ view of Europe, highlighting how this view gives privilege to Europe, Europeans and their descendants everywhere almost as a matter of right. Santos and Boatcă write that, ‘The meta-geographical East-West division has also served as the most common and long-standing internal differentiation within Europe, periodically transferring geopolitical, economic, and cultural divides into an ahistorical distinction between Eastern and Western Europe. The European East thereby sanctions Western Europe’s position as the norm’ (Santos and Boatcă 2023, 141). They write that the European East partly acquires attributes of a larger ‘Other’ in being portrayed as Oriental or ‘somehow Asian’. Historically, however, the concept of Europe has fluctuated depending not so much on geography as much as geopolitics and global power relations.

Global geopolitics was the reason for Britain to engage with European powers despite its own distinct island-nation position set apart from the rest of the continent (McCourt 2014). In the last chapter we saw how Britain maintained its position as a post-war global leader by brokering relations with former colonies which had become independent and encouraging free movement of people but then withdrawing from these arrangements as the internal political tides turned. Relationships between former coloniser and colonised proved sticky and not easily disentangled but Britain started looking for new partners, some of them fellow former colonisers themselves. The UK became active in European politics and made new economic alliances at a time of massive re-bordering within Europe.

In the post-war phase, several European borders have coalesced through reciprocal multi-lateral arrangements between nations in Europe. The Council of Europe (CoE) is an international organisation founded in the wake of the Second World War to uphold human rights, democracy and the rule of law in Europe. Founded in 1949, it now has forty-six members including the UK. In the 1950s, six core states – Belgium, France, Italy, Luxembourg, the Netherlands and West Germany – founded the EU’s predecessor, the European Economic Community (EEC). The remaining states have acceded in subsequent enlargements. It is noteworthy that the founding states of the EEC are all former colonial powers or have benefitted from colonial arrangements (Hansen and Jonsson 2017). The EEC began with a core idea of free movement of people amongst member states (Treaty of Rome). Nationals of EEC member states travelled freely between member states without requiring visas. However, they were still asked to produce their passports between borders, so internal bordering was not entirely abolished and largely coincided with national borders.

When the Schengen Convention was agreed in 1985, internal border checks were abolished, and a common visa policy was adopted. The Schengen Area encompasses most EU countries, except for Cyprus and Ireland. Bulgaria and Romania became the newest member states to join the Schengen Area, and as of 31 March 2024, any person crossing the internal air and sea borders is no longer subject to checks. Additionally, the non-EU states of Iceland, Norway, Switzerland and Liechtenstein have also joined the Schengen Area. The border-free Schengen Area guarantees free movement to EU citizens, along with non-EU nationals living in the EU or visiting the EU as tourists, as exchange students or for business purposes (anyone legally present in the EU). Free movement of persons enables every EU citizen to travel, work and live in an EU country without special formalities. When the EU was formed in 1993, similarly, the site of control shifted from national borders to the specific sites of document checking (Bigo and Guild 2005). Agreements such as these require member states to cede some amount of control over their own borders (Maas 2016).

Characteristics of EU citizenship

EU citizenship has a unique dynamic quite different from national citizenship. Any national of an EU member state is a citizen of the EU, but EU citizenship does not replace national citizenship. EU citizenship only adds some more legal rights to national citizenship. The rights attached to EU citizenship are such that they require respect from member states, hence indicating a willingness from nation states to give up exclusive national sovereignty over citizenship (Wallace 1999). This is a delicate balance, as holding EU citizenship depends on having a member-state nationality in the first place. While having national citizenship of an EU member state is vital, access is controlled almost exclusively by the member states.

As we have seen, by levelling the economic field between countries there can be a greater likelihood of free movement for individuals than when economic inequality is rampant. However, welfare provision may vary from state to state, leading to better economic support in some countries than in others. The EU cannot dictate changes to national standards. Not surprisingly, the largest differences between member states which affect the exercise of uniform substantive citizenship rights across Europe are the means of acquiring or losing national citizenship as well as the kind of welfare systems and social safety nets across Europe. Hence there is a focus on harmonisation of various member-state standards on relevant laws and for closer cooperation on matters of nationality and social welfare (Threlfall 2003).

While harmonisation is attempted through negotiations and diplomacy, when disputes arise these go to the European Court of Justice (ECJ: the supreme court of the EU in matters of EU law). As a part of the Court of Justice of the European Union, the ECJ is tasked with interpreting EU law and ensuring its uniform application across all EU member states under Article 263 of the Treaty of the Functioning of the European Union (TFEU). The Court was established in 1952 and is based in Luxembourg. It is not possible to appeal against the decisions of national courts in the ECJ, but rather national courts refer questions of EU law to the ECJ. When such questions about naturalisation and denaturalisation of people in different member states reach the ECJ, it can review these using EU standards of proportionality review. Proportionality is a general principle of EU law, as laid out in Article 5(4) of the Treaty on European Union. It restricts authorities in the exercise of their powers by requiring them to strike a balance between the means used and the intended aim. It can also look into denial of welfare to a member-state national by another member state. However, it is ultimately for the national courts to apply the resulting interpretation to the facts of any given case.

Another forum of adjudication is the European Court of Human Rights (ECtHR). The ECJ is not institutionally related to the ECtHR, which is also known as the Strasbourg Court. Established in 1959, the ECtHR interprets the European Convention on Human Rights (ECHR). The court hears applications alleging that a contracting state has breached one or more of the human rights enumerated in the convention or its optional protocols to which a member state is a party. Aside from judgments, the court can also issue advisory opinions. Since all EU states are members of the CoE and so are parties of the Convention on Human Rights, all of these states also have case law from the ECtHR. Over time, incrementally both courts have created jurisprudence on EU citizenship and human rights although sometimes some issues may not be wholly aligned between both courts.

The legal challenges in courts and incremental changes via legal instruments have meant the dismantling of European internal borders since the creation of the EU. Initially the legal changes were about movement of goods and then it became about the free movement of workers (Schmidt 2012). It is well recognised that the ECJ managed to become an important actor for European integration. By establishing the direct effect and supremacy of European law in the early 1960s, the ECJ constitutionalised the Treaty, granting European rights to individuals. The ECJ has been, and continues to be, a major force furthering European integration, and its case law on the fundamental freedoms laid out in the Charter of Fundamental Rights of the European Union. The Charter was declared in 2000 and came into force in December 2009 along with the Treaty of Lisbon. It brings together the most important personal freedoms and rights enjoyed by citizens of the EU into one legally binding document. It has been very important in this respect. There is widespread agreement among legal scholars on a convergence in the interpretation of the fundamental freedoms through the ECJ (Davies 2003; Tryfonidou 2016; Barnard 2010).

With the formation of the EEA and then the EU, Europe indeed became an area of free movement. But for whom? Softer monitoring for EEA nationals is the norm, but many scholars argue that the borders of Europe have further reified and blocked those from outside of Europe, and, with time, deprived many EU citizens of social rights in other member states (Mantu and Minderhoud 2023). Under EU laws, some third-country nationals could derive immigration status and also transmit the status to their children because countries permitted jus soli (birthright citizenship) and jus sanguinis (citizenship through blood-links). Yet there has been a move away from these permitted links which extend borders. For instance, in 1983 the UK moved from being solely a jus soli regime towards one mixed with blood-links. Being born in the UK does not automatically lead to British citizenship anymore. This makes it difficult for children of third-country nationals born in the UK to get British citizenship through birth in the UK unless they have a parent who is British or an EU national. Similarly, a prominent example of a birthright citizenship jurisdiction was Ireland, which until more recent times permitted jus soli. It changed this policy when faced with widening citizenship access for children of third-country nationals who were born in Ireland. Such children obtained birthright citizenship ties for themselves and legal rights for their third-country family members leading to a backlash against jus soli citizenship from existing citizens. The Chen case (Zhu and Chen, Judgment of 19 October 2004 [2004] Case C-200/02) is an example of the success of a third-country national mother to bring up an EU-born child as an EU citizen. The case is both about widening access and the backlash that followed the success. In this case a Chinese woman moved to Ireland to give birth. She gave birth to a baby girl named Catherine. As part of the Good Friday Agreement, a 1999 amendment to the Irish constitution specified that Irish citizenship was the ‘birthright of every person born in the island of Ireland’, including Northern Ireland. Though the baby’s Irish citizenship was never in question, UK authorities initially refused to extend a residence permit, and the case was referred to the European Court. The UK government submitted along with the Irish government that the action was inadmissible because the case fell outside the material scope of EU law. According to both governments, neither the child, Catherine, nor her mother, Mrs Chen, had crossed any border and could therefore not benefit from any citizenship rights. However, the ECJ in its judgment extended the protections of European law to a non-citizen parent of an EU citizen child even when they had not crossed borders between EU member states. The key factor here was that the child possessed the nationality of a member state different from the one where the family resided (that is, Irish citizenship) rather than crossing borders within the EU (Bigo and Guild 2005).

The Chen case thus gave some third-country nationals derived immigration status through their EU citizen children (White 2005). Many could also transmit EU citizenship to their children because some EU countries permitted jus soli (birthright citizenship) while others permitted a combination of modes of transmission via jus sanguinis (citizenship through blood-links). Yet the Chen case also contributed to the removal of unconditional jus soli in Ireland. Similar trends are observable across Europe: as third-country nationals started exercising derived rights to settle and give birth in European countries, several European countries moved away from jus soli. Birthright citizenship is much diminished now in Europe. Blood-links became the preferred way to transmit citizenship in many countries. The case itself was still undecided when the Irish government proposed the Twenty-Seventh Amendment of the Constitution of Ireland in March 2004 to remedy unconditional jus soli. The Irish Justice Minister called jus soli an ‘abuse of citizenship’ as it conferred on persons with no tangible link to the nation or the state a right of citizenship. The birth of an Irish child (the so-called ‘anchor child’) could enable non-nationals to circumvent the immigration and asylum systems. Eventually unconditional jus soli was abolished through the Twenty-Seventh Amendment of the Constitution of Ireland following the referendum.

The move away from birthright citizenship involved a departure from the traditional account of Irishness, which starts from birth (Maas 2016, 538). The question of citizenship by birth in Ireland first acquired prominence in recent years as a result of the Belfast Agreement of April 1998. This was an attempt at a political settlement for Northern Ireland and was agreed between the British and Irish governments and all but one of Northern Ireland’s major political parties. One new development in the Agreement was the acceptance by Unionist parties that persons born in Northern Ireland should be entitled to opt for Irish citizenship. The Agreement therefore recognised ‘the birthright of all the people of Northern Ireland to identify themselves, and be accepted as Irish or British, or both, as they may so choose’. That statement was then the subject of a declaration by the two governments, in which they expressed their ‘joint understanding’ that the term ‘the people of Northern Ireland’ meant ‘all persons born in Northern Ireland and having, at the time, of their birth, at least one parent who is a British citizen, an Irish citizen or is otherwise entitled to reside in Northern Ireland without any restriction on their period of residence’. Northern Irish people can choose to be both Irish and British or exclusively Irish or exclusively British, but at birth they are attributed to be British until they decide to exercise a choice. On reaching the age of majority, they can renounce their British citizenship through an administrative process and become Irish or they can continue to be British. This is laid out in the British Nationality Act 1981, which states that a British citizen of full age and capacity may renounce their British citizenship and that, subject only to concerns about statelessness, the Secretary of State shall give effect to that renunciation. This is particularly problematic because of the serious identity-linked nationality issues in Northern Ireland.

The presumption of Britishness at birth was challenged by Emma DeSouza, who was born in Northern Ireland and was treated as presumptively British by the Home Office in De Souza (Good Friday Agreement: nationality) [2019] UKUT 355 (IAC). She was denied an EEA residence card for her US-born husband on that basis. She challenged the decision but lost before the Upper Tribunal. Eventually the dispute was settled out of court for the DeSouzas. The Upper Tribunal found in favour of the Home Office’s position that the Belfast Agreement did not supersede the 1981 Act and therefore, Emma DeSouza was British despite her genuine belief that she was only Irish.

Making people citizens automatically through territorial birthright has normally been defended on the basis of administrative convenience. Since a birth is a publicly recorded event in many places (most have a central registry), citizenship through birthright provides the state with a reliable means to account for its population. Yet if birth citizenship is used to exclude outsiders it can lead to all sorts of inequalities and lead to the quick identification of unwanted ‘foreigners’ in the population mix. It also led to self-identification as foreign. For example, post-Brexit EU law rights attach solely from being Irish by birth in Northern Ireland. As EU law rights are often more generous for bringing in third-country national partners and deriving other benefits, those who would like to retain EU rights would have to undergo renunciation of their British citizenship by birth in Northern Ireland for pragmatic reasons. The numbers of these renunciations in Northern Ireland have soared in recent times as Brexit has led to fears of loss of EU rights.

The political and popular reactions around birth citizenship in Ireland and Northern Ireland are reminiscent of other debates about ‘anchor babies’ and ‘birth tourism’, such as in another unconditional jus soli jurisdiction, the USA. US courts have answered questions about territorial birthright citizenship by referring to common law precedents. The Fourteenth Amendment to the US constitution established the jus soli principle as the principal means of conferring citizenship on children. The Amendment states: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.’ Passed after the conclusion of the Civil War, the main purpose of the Amendment was to guarantee the citizenship status of former Black slaves. However, the Fourteenth Amendment has also been interpreted to mean that all persons born on US territory shall be accorded US citizenship. This interpretation was affirmed in United States v Wong Kim Ark, 169 U.S. 649 (1898), when the US Supreme Court ruled that a child born in San Francisco to Chinese parents was indeed an American citizen, even though his parents were non-citizens because of the Chinese Exclusion Laws. With the Fourteenth Amendment, the US placed nativity/birth on its territory as the foundation for determining membership in the political community (King 2007). The equation of citizenship with territorial birth is an important principle that marks the distinctiveness of the American nation and the substantive quality of American citizenship. For example, champions of birthright citizenship usually defend the practice on the grounds that it allows for the vast majority of the American population to attain equal political status, thereby enabling democratic self-governance and individual self-determination. Various politicians and public commentators seek to deny birthright citizenship to children born in the United States to undocumented or temporary migrants (Nakamura and Foster-Frau 2025). There are also arguments that it is not fair to make citizenship compulsory as it is non-consensual when gained at birth. Schuck and Smith (1996) term this ‘ascriptive’ and consider this less valid than citizenship by consent. In Chapter 1 we saw how in fact birthright status to subjecthood was useful for the advance of empire and the interests of empire, although recently there has been a rollback from birth citizenship for children of more recent arrivals. Consent is the basis of naturalisation but rarely do naturalised citizens get any extra credit or recognition for their consent in becoming a citizen. To the contrary, naturalised citizens are generally less secure in their citizenship status (see Chapter 6, for instance, on the cancellation of British citizenship).

The effect of Chen on subsequent family law-related cases (such as Zambrano – Ruiz Zambrano v Office national de l’emploi (ONEm), Case C-34/09) will be examined in Chapter 5 on the bordering of families. But for now, let it suffice to say that there is a clear move away from jus soli in the EU member states as well as in other countries of the world. Five EU countries award citizenship at birth on the basis of birth in the territory subject to certain conditions, but no country in the EU now provides unconditional jus soli (Erdilmen and Honohan 2020).

Continental citizenship and rights

Another effect of hard borders for third-country nationals is the difficulty in obtaining asylum in Europe. Europe is referred to as ‘fortress Europe’ because of its stringent control over asylum seeking (Krotký 2023). Meanwhile, EU citizens have increasingly obtained better protection of their rights EU-wide and their EU citizenship has been consolidated at the continental level.

The overall pattern emerging in the past few decades is of how continental bordering and free movement are linked with the strengthening of EU citizenship rights. Through case law analysis it is possible to see that the rights of EU nationals living in the UK evolved over time. At first, rights only attached to those EU nationals who were working in the UK. Through judgments of the ECJ, EU nationals became more than just workers in the law and started acquiring rights as citizens of the EU. Over time, nation states have been compelled by EU law to give access to all EU citizens through their national welfare support and resources despite some member states expressing reluctance (Kostakopoulou 2020). However there has been an increased exclusion of third-country nationals. Through these developments in exclusion, it is possible to see how law and exclusion function to confer status, and preferred authority of status, within the continental context primarily through reciprocal arrangements, while excluding people who originate from outside the continent. Exit from these arrangements, such as during Brexit, or in the instance of Commonwealth nationals in Britain in the earlier decades means that foreignness is generated by law and becomes an accessible means of demographic control.

The exclusionary features in EU law appear to be linked to protection for labour markets and national welfare resources, which is where there is the greatest misalignment between EU and national citizenship. Eventually even the large role of law in exclusion within the EU was not considered by the British politicians and public as sufficient for protecting British labour markets and welfare systems. EU immigration was a key factor for triggering the referendum process for Brexit (exit of the UK from the EU). Immigration became one of the tipping points for Brexit as the potential inclusion of Turkey in the EU and forward migration from EU member states in Eastern Europe to the UK became hotly debated topics (O’Brien 2016). Millions of EU nationals residing in the UK needed to regularise their status within a brief period; if they did not, they became foreign. In this manner, newly redrawn borders created foreigners through the constitutive operation of law.

From a migration perspective, Brexit was about successfully excluding others whether already present in the UK or aspiring to enter in the future. The constitutive registration system for ensuring that EU nationals could continue to live and work in the UK after Brexit was a different approach to membership from the declaratory system adopted earlier for the Windrush generation and other Commonwealth citizens in the UK. The legal arrangements in the two contexts thus provide an opportunity to comparatively assess how law operates for determining membership and the impacts of these approaches on whether people belong or become ‘foreign’.

As we assess the bordering of the continent through law we need to ask first if it is possible at all to belong to a continent. While a sense of belonging can be engendered by, say cheap or free rail travel for youth and cultural festivals across this region bringing about a psychological sense of home across countries, the politics of belonging can be quite different if different states have different manners of managing migration. As discussed before, Europe, not being a distinct geographical region, has an identity built on the spoils of colonialism, and linked with colonialism a sense of cultural supremacy. Yet, it is also the cradle of formalised and institutionalised human rights such as equality. For a long time, nation-state membership has been considered essential for access to basic rights in law. Indeed, even access to human rights is mediated through citizenship in practice. Hannah Arendt called citizenship the ‘right to have rights’ (Benhabib 2004). Even the right to hold a nationality itself is a basic human right. For instance, Article 15 of the 1948 Universal Declaration of Human Rights states, ‘Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.’ Yet nation-state membership can be deeply politicised and ethnicised. It can demand allegiance to values that a globally mobile population may not subscribe to, such as loyalty to a single country.

EU citizenship is a way to transcend some of the narrowness of nation-state membership. As a last-minute addition to the Treaty of Maastricht, without significant political discussions (Aziz 2009, 291), EU citizenship supplemented national citizenship, and the free movement of workers on the European level. All citizens of all member states automatically qualify. EU citizens may move and reside freely throughout the EU and may stand and vote in elections for municipalities and the European Parliament (Wind 2009, 254). Also relevant is Art. 12 (now Art. 16D) prohibiting discrimination on the ground of nationality. The core rights of EU citizenship are the freedom of EU citizens to live, work, study and access public resources anywhere within the common territory. States are reluctant to abdicate or transfer competence over the attribution of citizenship, because the competence to determine citizenship is the power to decide who is a member of the polity (Maas 2013; Weber 1964). The case can be made that citizens of the EU are essentially free from immigration control in moving around the territory of the member states. This is because of the range of rights that citizens of the EU have to travel, stay and reside, to/in other member states under EU law as a constitutional right flowing from their status as citizens. But, as already mentioned, it is not an autonomous concept. It is dependent on holding a member-state national citizenship (Art 9–12 of the Treaty on EU).¹ Declaration no. 2 to the Treaty states that, ‘the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned’. EU citizenship may be supplementary to national citizenship, but does it provide any additional rights to EU nationals living in other member states?

EU citizenship: undermining or sharing nation-state sovereignty?

Another domain of nation-state regulation has been national elections. EU citizens have had uneven access to voting rights in various member states (Ziegler and Nowag 2023). In France, for example, the introduction of EU citizenship prompted several changes to the constitution to permit voting by EU citizens who were not citizens of France, and voting rights proved contentious. All EU citizens have the right to vote for and stand as a candidate in European Parliament elections in their country of origin, or, if they live in another EU country, they may choose to vote and stand there, under the same conditions as the nationals of that country. Under the Treaty for European Union and EU Charter of Fundamental Rights, EU citizens who live in another EU country also have the right to vote and stand as a candidate in local or municipal elections in the country they live in, again under the same conditions as the nationals of that country. Yet EU citizens are still excluded from taking part in national elections, thereby again setting them apart as foreign despite holding continent-wide citizenship.

Since being or becoming a member-state national is crucial, a critical question is how does one become a citizen of one country while retaining links to other countries? The leading case on acquiring nationality is still the decision in the Nottebohm case delivered on 6 April 1955 in the International Court of Justice (Nottebohm Case (Second Phase) (Liechtenstein v Guatemala), ICJ Reports 1955). Mr Nottebohm, who was then a German national, had settled in Guatemala in 1905 and continued to reside there. In October 1939 – after the beginning of the Second World War – while on a visit to Europe, he obtained Liechtenstein nationality and returned to Guatemala in 1940, where he resumed his former business activities until his removal as a result of war measures in 1943 by Guatemala, as Guatemala had joined the US war effort. Lichtenstein was a neutral nation in the war. It decided to intervene on Nottebohm’s behalf, but the ICJ decided that Mr Nottebohm’s nationality of Lichtenstein was not based on any genuine prior link with Liechtenstein and the sole object of his naturalisation was to enable him to acquire the status of a neutral national in time of war. Since he maintained a domicile in Guatemala, the court held that he had not broken all bonds with his original nationality nor was he integrated into Liechtenstein society. For these reasons, Liechtenstein was not entitled to take up his case and put forward an international claim on his behalf against Guatemala. Liechtenstein nationality, having been acquired by naturalisation, could not have been considered dominant and effective. His request for indemnification of assets nationalised by Guatemala was rejected by the court.

The court emphasised that the grant of nationality was an act of national jurisdiction. But, at the same time, it held that the determination of nationality is not automatically effective internationally and that Nottebohm’s new nationality was not ‘ipso facto’ binding on third-party states. Nationality was defined in the Nottebohm case by the ICJ as ‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’. Hence nationality has an emotive component which may be difficult to evidence.

This reasoning has been criticised for introducing a subjective test for genuine and effective nationality instead of highlighting objective factors which indicate connections with a country (such as length of residence or presence of family). An objective standard could more logically measure an individual’s material connections to the country. Where people are employed or reside, and where they have family or financial assets can be determined through objective evidence and this could determine their dominant nationality far better than the affective elements set out in Nottebohm. Instead of looking to objective, demonstrable facts, the court engages in a psychological evaluation of love, patriotism, interest in public life and so on, all of which are highly subjective, and depend on each individual judge’s social and political opinions and tendencies.

Yet this affective or genuine connection approach is arguably still quite relevant and has even been part of other international law cases. For instance, the Inter-American Court of Human Rights, an international human rights court based in San José, Costa Rica, has decided that in Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica (1984), ILR, vol. 79, p. 284 ‘nationality can be deemed to be the political and legal bond that links a person to a given state and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that state’.

In the context of cancellation of citizenship, the presence or absence of another nationality becomes critical, and loyalty of the person being cancelled is also assessed. The psychological and emotional assessment for genuine connection resonates with a loyalty-allegiance-protection framing of citizenship and can be quite restrictive in terms of who belongs. Has EU citizenship transcended this mono-national framing and achieved any degree of real transnationalism? To some extent, it has done so, but the road to any understanding on continent-wide rights akin to national citizenship has been bumpy. Throughout the long evolution of EU citizenship, member states have not been willing to harmonise citizenship legislation or give primacy to the EU on this matter. The treaties specify that policies regarding the acquisition and loss of nationality remain the sole competence of the member states. Citizenship acquisition and loss are explicitly identified in the treaties as a matter of exclusive member-state competence.

A good example of this, which illustrates how the exclusion of British subjects through re-definitions and re-categorisations in British nationality laws excludes them from the EU as well, is the Kaur case decided by the ECJ [2001] EUECJ C-192/99 (20 February 2001). Born in Kenya in 1949 in a family of Asian origin, Ms Kaur became a Citizen of the United Kingdom and Colonies under the terms of the British Nationality Act 1948, but this status was not recognised under the Immigration Act 1971 as having a right of residence in the United Kingdom. The British Nationality Act 1981 conferred on Ms Kaur the status of a British Overseas Citizen, but as such, she had no right under national law to enter or remain in the United Kingdom. Following several temporary periods of residence in British territory, and while once again in the United Kingdom, in 1996 Ms Kaur re-applied for leave to remain as she already had done on several occasions since 1990, when she first entered the United Kingdom. This was denied, so she sought judicial review because she wished to remain and find employment in the United Kingdom and periodically to travel to other EU member states. The court decided that Ms Kaur was not a citizen of the UK and was instead a citizen of a non-member country (Kenya) and therefore she had no eligibility for EU citizenship.

When joining the EEC, the United Kingdom attached a declaration to its 1972 Accession Treaty, updated in 1982 following revisions to its nationality legislation, specifying that British citizens, British subjects with the right of abode in the UK, and British Dependent Territories citizens with a connection to Gibraltar all qualified as UK citizens for the purposes of EEC law (United Kingdom 1983). It means others who were overseas nationals and who did not have the right to enter the UK (such as Ms Kaur) could not claim EU citizenship. This case recognises the UK’s national sovereignty in redefining its own membership and even identifies this as customary international law in para 20.

On the basis of that principle of customary international law, the United Kingdom has, in the light of its imperial and colonial past, defined several categories of British citizens whom it has recognised as having rights which differ according to the nature of the ties connecting them to the United Kingdom.

The ECJ specified in the Kaur case that this declaration was an ‘instrument relating to the Treaty for the purpose of its interpretation and, more particularly, for determining the scope of the Treaty ratione personae’, thus confirming the UK’s authority to determine by itself who should be considered a British citizen for EU purposes. This meant Ms Kaur could not claim any links with the EU. Hence, those formerly linked (and displaced) by colonial powers could now be excluded both from nationality and from continental links. More generally, when national citizenship regimes become restrictive, they exclude people from EU citizenship as well, so that prior exclusions become even more hardened and durable. The case puts into place a double exclusion of overseas nationals from both subjecthood and then from the EC arrangement. However, the Kaur decision is not unexpected because of past case law of the ECJ. For example, the European Court had established in the case of Micheletti and Others v Delegación del Gobierno en Cantabria [1992] Case C-369/90 that, under international law, ‘it is for each Member State, having due regard to Community law, to lay down the conditions for the acquisition and loss of nationality’.

In Micheletti, which is also about a third-country connection, the Court of Justice examined an issue of dual nationality, Italian and Argentinian, of Mr Micheletti, which came before the Spanish administrative authorities. Mr Micheletti applied for legal residency in Spain claiming that he was an Italian national, which was denied by the application of Spanish law, which in cases of dual nationality is inclined to the nationality that coincides with the last habitual residence. Here his last residence was located in Argentina, so the Spanish administration considered that Mr Micheletti was not able to use EU law as a national of a member state. The ECJ found that Spain was not permitted to limit the application of community law in this manner especially if it constrained how another member state (Italy) recognised its own nationals. Mr Micheletti was recognised as Italian by Italy while being a dual national and residing in Argentina so that principle of dual nationality had to be respected by Spain as well.

Associated with the idea of multiple nationality holding is the core human rights principle of avoidance of statelessness. EU law prohibits statelessness. This became an important consideration where loss of citizenship is concerned. In another case where two member states were involved, the Rottmann case, Rottmann v Freistaat Bayern, Case C-135/08, a person had his member-state nationality revoked and this, in turn, deprived him of his citizenship of the EU. Mr Rottmann had acquired German nationality by naturalisation and had thus lost his Austrian nationality of origin. The German nationality was then revoked with retroactive effect on account of deception practised in that acquisition (fraud in the application process), thereby leaving Mr Rottmann stateless. The Court of Justice of the European Union (CJEU) declared that while

… the Member States have the power to lay down the conditions for the acquisition and loss of nationality, … the exercise of that power, in so far as it affects the rights conferred and protected by the legal order of the Union, … is amenable to judicial review carried out in the light of EU law.

In order to comply with EU law, the revocation of nationality should respect the principle of proportionality, and this principle applies to both the member state of naturalisation and the member state of the original nationality. In particular,

it is necessary to consider the consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union. In this respect it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality.

Given Mr Rottman could not recover his Austrian nationality it was not possible to revoke his German nationality.

Another case, Tjebbes and Others v Minister van Buitenlandse Zaken, Case C-221/17 [2019], concerned a Dutch law providing for the automatic loss of nationality for Netherlands nationals who were resident outside the Netherlands (or any other member state of the EU) for ten years or more. The four applicants were Dutch citizens, by birth or naturalisation, who possessed also the nationality of a non-EU state (Canada, Switzerland and Iran) and had lost their Dutch nationality by operation of the law due to their residence abroad (and outside of the EU) for more than ten years. Three of the applicants, resident outside the Netherlands, lost their nationality by operation of the ten-year rule. The daughter of one of the first three applicants lost her Netherlands nationality by virtue of being a child of a Netherlands national denaturalised by operation of the ten-year rule. All four challenged a decision by the Minister refusing to issue new passports. Unlike Mr Rottmann, in this case the individuals had not become stateless upon the loss of the Dutch nationality, but they had lost the citizenship of the EU. Recalling Rottmann, the CJEU declared that while a member state retains the right to determine the conditions for the loss of its nationality,

it is for the competent national authorities and the national courts to determine whether the loss of the nationality of the Member State concerned, when it entails the loss of citizenship of the Union and the rights attaching thereto, has due regard to the principle of proportionality so far as concerns the consequences of that loss for the situation of the person concerned and, if relevant, for that of the members of his or her family, from the point of view of EU law.

The CJEU further provided some guidance on how to grant consistency with the principle of proportionality in the case at stake: the national authorities and courts ‘must be in a position to examine, as an ancillary issue, the consequences of the loss of that nationality and, where appropriate, to have the person concerned recover his or her nationality’. Such examination should be made on a case-by-case basis, with consideration given to the normal development of the family and professional life of the persons involved. The loss of citizenship must be consistent with the fundamental rights granted by the Charter of Fundamental Rights, and specifically with the right to respect for family life and to adequate consideration of the best interest of the child.

In JY v Wiener Landesregierung [2022] Case C-118/20, a similar assessment was carried out by the CJEU.² Ms JY, an Estonian national resident in Austria, had applied for Austrian nationality in 2008. After a few years, in 2014 the competent Austrian authority assured JY that she would be granted Austrian nationality if she could prove, within two years, that she had relinquished her citizenship of Estonia, as provided by Paragraph 20 of the Austrian Law on Nationality. JY renounced her Estonian nationality and provided such confirmation in 2015, thus becoming stateless. In 2017, the newly competent Austrian authority revoked the decision issued in 2014 by the previously competent authority and rejected the application for nationality. This decision was justified by the fact that JY had committed, between 2014 and 2017, two serious administrative offences (failing to display a vehicle inspection disc and driving a motor vehicle while under the influence of alcohol) and eight administrative offences between 2007 and 2013. Thus, she no longer satisfied the conditions for grant of nationality. This decision was confirmed by the administrative court. On further appeal on a point of law, the Supreme Administrative Court of Austria took the view that such a situation did not fall within EU law since, unlike in Rottmann and Tjebbes, JY had already voluntarily lost her Estonian nationality and the citizenship of the Union when the 2017 Austrian revocation of the assurance was issued. Nevertheless, it asked the CJEU whether this case fell under EU law. The CJEU confirmed the right of member states to establish the national rules concerning the acquisition and loss of their nationality, including the legitimacy of the aim of avoiding multiple nationalities. The CJEU stated that both the host member state and the member state of the original nationality must comply with EU law:

the Member State of origin should not adopt, on the basis of an assurance given by that other Member State that the person concerned will be granted the nationality of that State, a final decision concerning the deprivation of nationality without ensuring that that decision enters into force only once the new nationality has actually been acquired.

The decision to revoke the assurance previously given to that person as to the grant of nationality, that may have the effect of making the loss of the status of citizen of the Union permanent, can be made only on legitimate grounds and must respect the principle of proportionality. The court held that JY did not appear to represent ‘a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society or a threat to public security’ in Austria that might justify the permanent loss of her status of citizen of the Union. The issue of conduct with her was about her driving record. She was imposed only minor fines, and even her driving licence was not withdrawn. In conclusion, the court stated that the principle of proportionality in such a case is not respected where the decision to revoke the assurance to grant Austrian nationality is based on administrative traffic offences which give rise to a mere pecuniary penalty. As a consequence of this case the discretionary powers of member states in this area appear to be more contained within wider legal principles. These developments are therefore likely to nurture greater access to EU citizenship.

Continental ‘welfare’ bordering and borders in the borderless: free movement while keeping ‘others’ at bay

A prime area of contention for European law and national citizenship has been EU citizens’ opportunities to claim social benefits in other member states. Nation states have found that their ability to regulate and restrict access to national welfare systems was greatly circumscribed after EU law safeguarded this right for EU citizens (Blauberger and Schmidt 2014). Directive 2004/38, which codifies European jurisprudence on free movement, states in its preamble, that ‘Union citizenship is the fundamental status of nationals of the member states when they exercise their right of free movement’ (European Parliament/Council 2004). EU law prohibits discrimination on the basis of member-state nationality with some limited exceptions yet nation states who are members of the EU are often unwilling to support foreigners. Thus, member states continue to exercise discretion in terms of welfare support for non-nationals.

When migration causes ethnic diversity there is very little popular support for universal welfare state programmes in most countries (Freeman 2009, 9). Social scientists hypothesise that this is because societies that are diverse usually have lower levels of social trust, and this leads them to spend less on social welfare and redistributive programmes (Freeman 2009, 2). Even within national boundaries centralised welfare means usually greater scrutiny of outsiders from different regions. For instance, under the ‘Old Poor Law’ of 1601 in England internal migrants moved from one jurisdiction to another when they crossed parochial boundaries (Feldman 2003). Later, central government took an enlarged and expanding part in welfare. As it did so, the entitlement to welfare of immigrants from overseas was scrutinised at a national level in a way that was analogous to the manner in which the status of internal migrants had previously been scrutinised at a parochial level.

In the twentieth century the situation changed, with central government increasingly contributing to old age pensions, health and unemployment insurance, and even to family allowances and to national assistance. Thus, the Aliens Act of 1905 linked external migration and welfare (Bloch 2000; Miles and Cleary 1993). More recently, the term ‘welfare chauvinism’ has developed to describe policies enacting the notion that social assistance should be allocated on the basis of ethnicity or national citizenship. For example, many migrants have ‘No Recourse to Public Funds’ (NRPF), a set of rules originating in the Immigration and Asylum Act 1999 for excluding many non-UK nationals from welfare benefits. This means they may be ineligible for benefits like housing assistance, Universal Credit and other welfare payments (Dickson and Rosen 2020).

Welfare, and its relevance in reifying borders, means that people who work are glorified as productive and the work they do is valorised. Migrants who work are usually depicted as deserving and morally upright. Automatically there is a preference then for able-bodied, highly skilled workers who are likely to contribute to society without needing much support from the state in return. In the next chapter I examine this in the context of bordering of the workplace but here I look more closely at how migration and welfare have shaped both nation state and continental bordering.

EU citizenship, at least initially, was conceived of as an efficient means to facilitate access to national labour markets for the best suited workers from across Europe. Through a series of judgments of the European courts the rights became more linked to EU citizenship itself rather than to the holding of worker status. Directive 2004/38 is the main piece of secondary legislation setting the conditions for the exercise of the right to free movement for EU citizens and their family members, including the rules on equal treatment and social assistance. When introduced in 2004, the Directive was meant to bring clarity and to unify the rules applicable to mobile EU citizens irrespective of engagement in an economic activity. While the EU level creates transnational social rights and sets out the conditions of access to an EU host state’s welfare system, the delivery of welfare takes place at the national and local levels, making national administrations and bureaucrats important actors in the governance of welfare. As Olsen states, free movement has ‘made national borders less firm, but the boundaries of welfare states and social systems are still at work in contemporary Europe’ (Olsen 2015, 99).

Economically inactive citizens can move and reside in another EU state if they have sufficient resources and comprehensive medical insurance. CJEU case law has assessed rights of economically inactive EU citizens by applying the principle of non-discrimination to the basis of nationality, from Article 18 of the TFEU. The legal category under which EU citizens exercise their right to free movement – worker, jobseeker, student or economically inactive – determines access to social rights in the host state and leads to differential inclusion in the welfare state (Mantu and Minderhoud 2023). Thus, equal treatment works at its best and most generous where it is underpinned by the citizen’s contribution to the ‘market’ but less so where the EU citizen is economically inactive and poor. There is significant discrimination against the least well-off EU citizens, those who are perceived to pose a threat to or constitute a burden on, the host member state. Such forms of discrimination against ‘undesirable’ migrants commonly occur in jurisdictions where different levels of government are responsible for social welfare provision (Maas 2013).

The issue of challenging discrimination on the grounds of nationality was successfully illustrated in the case of Martínez Sala v Freistaat Bayern [1998] Case C-85/96, where a Spanish woman who was living in Germany applied for a child-raising grant. She was refused on the grounds of nationality as she was not a German national and did not have a residence permit. She challenged this refusal, and the ECJ ruled that she was a Spanish national (and therefore an EU citizen) who lawfully resided in Germany. She was able to invoke Article 12 EC in conjunction with Article 18 EC. This case was later applied in Grzelczyk v Centre Public d’Aide Sociale d’Ottignies-Louvain-la-Neuve [2001] Case C-184/99, which concerned a claim for financial assistance from the Belgian social service. A French national who was a student in Belgium was turned down on the basis that he was not a Belgian national or a migrant worker, which was the requirement of Belgian legislation for accessing social welfare. The ECJ held that as he was a French national who was lawfully resident in Belgium, he was protected by Article 18 EC and allowed to call upon Article 12 EC to claim the financial assistance. This reinforced equal treatment for EU citizens who require financial help.

In Collins v Secretary of State for Work and Pensions [2004] Case C-138/02, an Irish-American dual national who claimed Job Seekers Allowance days after arriving in the UK was initially refused the allowance as habitual residence was required for this allowance. The ECJ held that as an EU citizen, he is entitled to equal treatment. A limitation can be placed on accessing benefits, but not if the person has a genuine link to the local labour market, which is the case for an EU member-state national seeking work. Effectively the ECJ held that a dual Irish-American national could rely upon EU law, thereby strengthening the rights of dual nationals. Similarly, in Trojani v Centre public d’aide sociale de Bruxelles [2004] Case C-456/02, a Salvation Army volunteer applied for the minimum subsistence allowance in Belgium. He was French, but went to Belgium in 2000, staying at a campsite and then a youth hostel in Brussels. He got board, lodging and pocket money for doing jobs for thirty hours a week, as part of a ‘personal socio-occupational reintegration programme’. He was denied this benefit from the Free Movement of Workers Regulation 1612/68 as he was not considered a ‘worker’. However, the Court of Justice, Grand Chamber, held that Mr Trojani should be protected as a worker.

This line of cases took a restrictive turn with two cases, Brey (Pensionsversicherungsanstalt v Peter Brey [2013] Case C-140/12) and Dano (Elisabeta Dano and Florin Dano v Jobcenter Leipzig [2014] Case C-333/13), and now it became the requirement to be legally resident in a member state in line with EU law, that is, they must have sufficient resources in the first place in order to receive welfare subsequently after entry. In Brey, Peter Brey and his wife, both German nationals who moved to Austria in 2011, relied on an invalidity pension in Mr Brey’s name. Mr Brey applied for a compensatory supplement for his pension and was subsequently excluded from that grant on account of the fact that he lacked sufficient resources to establish his residence in Austria. The CJEU asserted that national decision makers must assess ‘the specific burden’ that an award of benefits would put on the social assistance system, ‘by reference to the personal circumstances characterising the individual situation of the person concerned’. Member states should not reject a claim for benefits without considering the individual’s amount and regularity of income, the fact of any residence certificate, and the period over which the benefit is likely to be granted. However, the right of a host EU state to deny social assistance and to terminate the right to reside of an EU citizen who is not self-sufficient became equally central.

In Dano, Ms Dano and her son, both Romanian nationals, claimed an entitlement to unemployment benefits after being denied work by the jobcentre. At the time of the case, she was not seeking employment, had no training and had not worked in Germany or Romania before. She had lived in Germany since November 2010 at her sister’s home. While deciding Dano, the court gave even greater deference to member-state interests than in Brey.

Welfare issues are even more complex when third-country family are involved. In this chapter, this is touched on briefly, but in the family chapter (Chapter 5) I shall look more closely at the bordering impact of the MM case, MM (Lebanon) and Others (Appellants) v Secretary of State for the Home Department (Respondent) [2017] UKSC 10, in which British citizens were attempting to bring into the UK their third-country national family members. In MM, the UK Supreme Court considered the appeals of five appellants with the right to live and work in the UK but married to third-country spouses without this right. The minimum income requirement (MIR) restricted cross-border relationships by denying family reunion. All the applicants were disadvantaged by the MIR. The Supreme Court decided that the Secretary of State could impose the MIR but would have to specifically consider the best interests of children while assessing the effects of the Rules on a family as a primary consideration. After the MM case, the amended rules and guidance give effect to the decision regarding children’s best interests. Indeed, the immigration rules now make express provision for these interests. However, the minimum income requirement is still in place and the current MIR has increased enormously in number since the decision.

The reluctance of nation states to include non-citizen family members is because of the perception that welfare is based on ideas of belonging through citizenship and paying into a common national pot (Jubany and Mayblin 2024). Belonging in a political sense tends to be connected to territorial residence in the nation state, to claims to nationality, and to the exclusion of others who have any legitimate claim to the collective pot (Anderson 2013). When people arrive in Europe from elsewhere today, there is a tendency to view these people as not deserving of benefit from European welfare states. While liberal laws and viewpoints may celebrate pluralism and multiculturalism, the harsh reality of colonial exploitation and that modern Europe has been diversified mainly by immigration from former colonial connections only in the last half century or so means there is a large gap in welfare harmonisation within the EU especially with respect to foreign nationals.

Bordering asylum

Bhambra (2022) has demonstrated through her research that Britain drained money from the colonies, and this paved the way for the current welfare state. Similarly, Achiume (2019) challenges the legal right of ‘First World’ states to exclude ‘Third World’ citizens, given Europe’s colonial history. Asylum protection has also been weakened in the name of protecting the welfare state as asylum seekers and refugees are often portrayed in politics and media as illegitimate burdens on European welfare states. European states limit asylum seekers and refugees’ access to the welfare state yet Europe’s colonising in the past impoverished most of the world from which many asylum seekers move and should not be overlooked. Article 14 of the 1948 Universal Declaration of Human Rights boldly states: ‘Everyone has the right to seek and enjoy in other countries asylum from persecution’. When Britain ratified the 1951 Geneva Convention on the Status of Refugees in 1954 it did so, as did all other signatories, on the basis that refugees were defined as Europeans displaced before 1951. This territorial restriction, which remained until 1967, was necessitated because Britain and the other colonial powers did not view colonised subjects as being fully entitled to – or even ready for – human rights.

Scholars also point out that European countries do not host most asylum seekers. The vast majority of the world’s refugees are hosted in countries neighbouring their countries of origin. The refusal to host asylum seekers has exposed the borders of the EU in the most apparent manner. Under the 1993 Treaty of Maastricht, previous intergovernmental cooperation on asylum was brought into the EU’s institutional framework.³ The EU developed an ambitious agenda to develop a continent-wide common policy on asylum, subsidiary protection and temporary protection for all non-EU nationals seeking international protection. The EU was bound by the Geneva Convention relating to the Status of Refugees of 28 July 1951 and the Protocol thereto of 31 January 1967, which meant that the principle of non-refoulement and all other principles regarding treatment of asylum seekers had to be fully observed. The Common European Asylum System (CEAS) first aimed to adopt the common minimum standards in the EU and then develop a short-term common procedure and a uniform status for those who are granted asylum to be valid throughout the EU in the longer term.⁴

Member states had to adhere to the same common minimum standards in connection with the reception of asylum seekers. The CEAS determined qualification criteria for international protection and the nature of the protection granted. It established procedures for granting and withdrawing refugee status. It went beyond minimum standards to develop a single asylum procedure comprising common guarantees and a uniform status for those granted protection. This was eventually established through the Treaty of Lisbon, which entered into force in December 2009 and created a common system comprising a uniform status and uniform procedures. The common system unifies grant and withdrawal of asylum, subsidiary protection and temporary protection. It also set in place criteria and mechanisms for determining which member state is responsible for considering an application, and standards concerning reception conditions. In July 2013 the Eurodac Regulation, the Dublin III Regulation, the Reception Conditions Directive and the Asylum Procedures Directive, were adopted.

In order to enforce border policies an EU agency, the European Border and Coast Guard Agency, commonly known as Frontex, was developed in coordination with the border and coastguards of member states. Initially, Frontex merely played a coordinating role to support member states. This changed over time and Frontex became a key means of bordering the EU. Indeed, the EU, through the asylum and migration control mechanisms mentioned above as well as the work done by Frontex, has become a key player in migration control, often seeking to displace refugees to other countries and thereby earning the epithet ‘fortress Europe’.

In 2015 there was the peak of a huge humanitarian crisis of displaced people seeking to reach Europe for safety. UNHCR reports that as of 7 December 2015, more than 911,000 refugees and migrants arrived in Europe. Some 3,550 lives had been lost during the journeys made by displaced people. This crisis was because of the conflicts and forced displacements from Syria, Afghanistan or Iraq and it continues to displace people to this day. Britain is a nation of islands which means very few out of those displaced actually reach it. Those who do are forced to arrive by unsafe routes over sea. In response to the displacements of people form the Middle East over 2015–2016, the European Commission reshaped Frontex to be a fully-fledged European Border and Coast Guard Agency with a massively enhanced budget and thousands of border guards to protect against asylum seekers (Vaughan-Williams 2008). Increasingly, Frontex is active in joint operations along EU external borders, including in the Mediterranean Sea and the Balkans, working closely with both EU and non-EU states. European and international nongovernmental groups, including Human Rights Watch, and media outlets have reported abuses by Frontex and officials from EU member states toward people arriving at EU borders. These include violent and illegal pushbacks where migrants are forced back over a border they have crossed without consideration of their asylum claims.

What we see in these incremental developments is that Frontex was not a one-time response to an urgent situation. It has grown to encompass bordering in normal peace times rather than being an agency that coordinates response at exceptional times (Vaughan-Williams 2008). In September 2020, the European Commission issued the New Pact on Migration and Asylum which proposes integrating the asylum procedure into overall migration management, linking it with pre-screening and return and thereby normalising the denial of asylum.

On the contrary, there have also been some international developments for improving conditions of asylum seekers. On a global level, in September 2016, the United Nations General Assembly unanimously adopted the New York Declaration for Refugees and Migrants, a landmark political declaration aimed at improving how the international community responds to large-scale movements of refugees and migrants and to protracted refugee situations. As a result, two global compacts were adopted in 2018, for refugees and for safe, orderly and regular migration (UNHCR 2016). The New York Declaration sets out a Comprehensive Refugee Response Framework, setting out specific actions needed to ease pressure on host countries, enhance refugee self-reliance, expand access to third countries and improve conditions in countries of origin to enable refugees to return in safety and dignity. Based on these four key objectives, on 17 December 2018, the United Nations General Assembly affirmed the Global Compact on Refugees (Türk 2016).

At the UK national level however there has been little improvement and many new challenges for asylum seekers over the years. At present, asylum seekers arriving in the UK are without safe air or land routes. The phenomenon of people crossing the English Channel in small boats has led to many deaths from drowning but Migration Observatory reports that the vast majority of people who arrive are able to gain asylum as they have genuine claims. They write, ‘the grant rate for people arriving in small boats to date has been higher than the average grant rate for asylum applications generally. In the year to 31 March 2024, 62 per cent (54,372) of all asylum decisions (87,501) were grants of refugee status or other permission to stay’ (Walsh and Cuibus 2024). Yet there is a huge backlash against the asylum seekers who arrive in this manner even if they had no other options available for seeking safety. Their arrival in the UK is viewed as a security threat and their presence a drain on the country’s resources.

Historically asylum seekers were forced to come in via the sea as there were no other safe routes for them, for example, the Huguenots, who were French Protestants in the sixteenth- and seventeenth-century French Catholic state arrived by boats in Britain and became refugees here (Cottret 1991). Jews who were escaping persecution in Russia and Eastern Europe by boat were the reason that the Aliens Act of 1905 came into being in the UK (Bashford and Gilchrist 2012). This Act targeted seafaring migrants on the basis of perceived penury, ill-health or likelihood to be become a public charge. During the Second World War, 250,000 Belgian refugees crossed the Channel ‘crowding every floating thing that could possibly be put out to sea’ (Bailkin 2018, 16).

The 1993 Asylum and Immigration Appeals Act became part of UK law as the first piece of primary legislation dealing specifically with asylum since the 1905 Aliens Act. The 1993 Act, while clarifying the right to seek asylum in international law imposed harsh new measures on asylum seekers and restricted their arrival (Macdonald 1993). Now, under section 40 of the Nationality and Borders Act 2022 (NABA), it is difficult for a person to arrive in the UK without a visa in order to claim asylum and they are no longer able to seek asylum from outside the country. From 28 July 2022 onwards, anybody who enters the UK (without a visa) and claims asylum will commit an offence of illegal entry which carries a maximum sentence of four years.

The Illegal Migration Act (IMA) was enforced on 20 July 2023 with the stated purpose of preventing and deterring ‘unlawful migration, and in particular migration by unsafe and illegal routes, by requiring the removal from the United Kingdom of certain persons who enter or arrive in the United Kingdom in breach of immigration control’. Many of the provisions of the IMA depend on agreements of the UK with safe third countries. At the EU level, the European Council and Türkiye reached an agreement in March 2016 aimed at reducing the flow of irregular migrants into Europe via Türkiye. One of the key initiatives presented in the New Pact on Migration and Asylum was the promotion of tailor-made and mutually beneficial partnerships with non-EU countries in the area of migration.

As we saw in the previous chapter, in April 2022 the UK had attempted to enter into an agreement with the Rwandan government to make arrangements to remove people seeking asylum who fulfilled the ‘inadmissibility’ definition (this means they had been present in or had a connection to a safe third country) to Rwanda as another ‘safe third country’ to have their asylum claim processed there instead. However, the Supreme Court found the Rwanda policy illegal on 15 November 2023, after over a year of litigation in the courts. The Supreme Court of the United Kingdom ruled that the Rwanda policy was unlawful, so no one has been sent to Rwanda. In future other such externalisation agreements may however come into place again. There may be further disputes about which countries are safe third countries. For example, in July 2023, the European Commission signed a Memorandum of Understanding with Tunisia and paid over 150 million euros to Tunisia (European Commission 2024). These developments raise new concerns about who will receive asylum in Europe, what is a safe third country and resources and national security.

This dilution of the right to asylum is complemented by special schemes that have increasingly started replacing the general right to seek asylum. Such schemes may appear to be quick and effective but become political decisions around special support for certain groups rather than being universal guarantees of rights. For example, when Russia invaded Ukraine in February 2022 and millions of Ukrainians were internally displaced, while millions sought refuge in other countries the UK government created a number of special schemes to support displaced Ukrainians (UNHCR 2025). However, these schemes depend on support from UK residents and organisations rather than being fully funded by the state. The first was the Ukraine Family Scheme which allowed immediate and extended family members of British nationals, people settled in the UK, and certain others resident here, to come to, or remain in the UK. It then opened a Homes for Ukraine Sponsorship Scheme which allows Ukrainian nationals and their immediate family members to apply for permission to come to the UK if they have an approved sponsor. The UK sponsor does not need to have any family ties to the Ukrainian applicant but can offer them a home, such as a spare room or unoccupied residential self-contained unit. Another scheme is the Ukraine Permission Extension Scheme which allows Ukrainian nationals to extend their stay in the UK if they have a visa under the Homes for Ukraine or Ukraine Family schemes. Ukrainian nationals in the UK who have temporary visas, including work, study or visit visas, can apply to the Ukraine Extension Scheme. Any Ukrainian who held permission to stay in the UK on or between 18 March 2022 and 16 May 2023 is eligible to apply for three year’s leave through the Ukraine Extension Scheme. But those who applied after this date can get only eighteen months’ extension. These special schemes have tremendous positive impact on the lives of people displaced and provides them with opportunities to work and live, but none of these lead to long-term status or provide a route to settlement. Many Ukrainians in these schemes experience anxiety because of the short-term nature of the schemes and because of the complexity of the application process.

Similarly, a special scheme for Hong Kong Nationals was created by the UK government a few years prior to the Ukrainian schemes. For ninety-nine years Hong Kong was a British colony and dependent territory before returning to Chinese sovereignty on 1 July 1997. Many Hong Kong residents possess a type of British Nationality Status known as British National (Overseas) (Benson 2025). From 31 January 2021, people with BN(O) status could apply for a Hong Kong British National (Overseas) visa to come and live and work in the UK for an initial period of thirty months which could be extended and lead to Settlement and British Citizenship. The BN(O) visa does not require a job offer, however, applicants must demonstrate that they have enough funds to support themselves independently in the UK for at least six months. Notably, there is also a NRPF condition attached to the visa. So, it is clear that this scheme also does not provide the kind of full support that asylum protection is supposed to provide.

Brexit and ramifications

Asylum, and how many asylum seekers will be welcomed, together with other issues of migration, were prominent in the lead up to the UK’s exit from the EU (Brexit). The EU was considered a problem by many UK citizens because freedom of movement within the EU was seen as limiting the country’s sovereignty. For the EU, place belonging has a dual (or multiple) component. Movement between EU countries triggers certain rights. Such widening beyond nation-state bounds could be seen as a weakening of the national grip on citizenship and expansion beyond a single allegiance. It is also about greater ‘European’ belonging which can clash with values of patriotism. The national allegiance element clashed with the European in instances where simply highlighting the European has led to a backlash. Brexit is an instance where the national and supra-national citizenship modes have misaligned.

The national debate became steeped in nationalistic nostalgia with a preference for a more ‘British’ Britain. Many commentators link a hankering for empire with Britain’s exit from the EU. Nobel laureate Abdulrazak Gurnah has said that the British Empire is ‘still important in Britain’ and may well have played a part in the Brexit vote (Knight 2022; see also Newbigin 2017). Once EU membership and rights expanded, Britain’s continued membership of the EU became increasingly contested. New members and prospective members such as Turkey, were clearly redefining ‘Europeanness’ which was uncomfortable for many who saw being European as being Western European.

Some popular narratives are that asylum seekers have reconfigured nation-state demographics and failed to integrate while third-country nationals are taking advantage of more liberal EU laws for partners and family members. Hence EU citizenship has become simultaneously more threatening for national control over borders and threatened by the exercise of national sovereignty.

Brexit was framed as an opportunity for establishing the UK’s own laws and being able to execute them, which gained 51.9 per cent of votes in the referendum of 23 June 2016, and eventually, the UK exited the EU after a transition period. As Scotland and Northern Ireland did not want to leave the EU, Brexit was viewed as an example of ‘Little England’ mentality (Doty 1996). Brexit categorically excluded EU nationals from a continued right to enter and reside in the UK except for those who availed themselves of a settlement process. Those who missed this process became irregular overnight. Yet, deciding who enters and who leaves the territory is fundamental to the exercise of sovereign power. The inability of the state to administer its borders successfully therefore ‘creates a dilemma within the logic of governing’ (Garland 1996). The UK government triggered Article 50 TEU on 29 March 2017, which makes clear that ‘Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements’. The UK eventually left the EU on 31 January 2020. This exit was considered by many to be the regaining of UK sovereignty from supra-national political control.

Following the end of the Brexit transition period, at the beginning of 2021, EU citizens living in the United Kingdom were moved under the plethora of highly complex national immigration laws. More than three million people are now required to comply with immigration laws previously not applicable to them. They previously had free movement but now needed a visa and to meet salary and skills thresholds. Thus, Brexit is another example of migrating borders because overnight EU nationals living in the UK became foreign without moving anywhere or crossing borders themselves.

As we saw in the last chapter, in the 1960s and 1970s the UK government had decided to follow a declaratory route and to simply continue the lawful residence of existing residents by operation of primary legislation. There was no need for existing residents to apply for a new immigration status. Perhaps this was because new arrivals from the Commonwealth were being actively blocked. But it was anticipated that post Brexit there would be a need to distinguish between newly arrived EU nationals and those already UK residents, hence the EU residents who wanted to remain post Brexit had to register and gain proof of their legal status. The scheme to facilitate such proof was the EU Settlement Scheme (EUSS). EU, EEA and Swiss citizens and their family members resident in the UK prior to 31 December 2020 have had to apply to secure their status and rights in the UK through the EUSS which granted eligible individuals rights of legal residence depending on their length of residency in the UK.⁵

All EU, EEA and Swiss citizens and their family members living in the UK by 31 December 2020, had their rights guaranteed until 30 June 2021. After this date, only holders of certain status have the legal right to remain in the UK. While many Commonwealth nationals were later failed by the state in the Windrush ‘scandal’, EU nationals had a way to gain proof of status, but failure to apply would lead to them becoming unlawfully resident as soon as the application deadline expired. This would also have an impact on dependent children whose status relied on that of the parents (Griffiths and Yeo 2021). Many EU citizens who were entitled to apply may not have done so as they were vulnerable (for example, they could be elderly, lacking mental capacity, children in care or simply unaware). Concerns have also been raised over the perceived discrimination in the use of the algorithm-based automatic check mechanism and the inability of some of the applicants to use the Home Office app – which was initially available only for Android smartphones – because this excluded EU citizens who used other devices or who did not have a smartphone (Tomlinson 2020). These cracks in the system may appear unintended and purely bureaucratic or technological in nature but what these did were ensure that EU nationals now increasingly fall within the nets of the new hostile environment. The hostile environment of immigration policy makes life unbearable for those who are not able to prove their legal status to reside in the UK. One of the means it adopts is to include private individuals such as employers and landlords to report on undocumented people (Liberty 2019). A total of 2.6 million EU citizens have lost their right to live and work in the UK automatically. Many were simply people who could not apply for settlement in time to protect their settlement rights by 30 June 2021 (Fernández-Reino and Sumption 2022). Similarly, post Brexit, vulnerable rough sleepers or poorer EU nationals who did not avail themselves of the EUSS in a timely manner suddenly became deportable overnight even if they had resided for a long time in the UK (Radziwinowiczówna and Lewis 2021). The new rules made rough sleeping grounds for refusal or cancellation of permission to be in the UK (Morgan and Dickson 2021).

There is some evidence that the UK frequently sought to deport EU citizens when they were covered by the safeguards provided by the Citizenship Directive (Ryan 2017). In 2016, the year of the Brexit referendum, there was a 26 per cent increase in the number of EU citizens deported from the UK in comparison to 2015.⁶ The growth in the number of deportations has been attributed to the increasingly hostile environment targeting EU citizens in the UK, especially rough sleepers (Demars 2017).

The UK, even before Brexit, was negotiating its sovereignty from the EU by excluding its citizens and selecting for deportation the most vulnerable, such as people with low or no income and no access to housing (Radziwinowiczówna and Lewis 2021). EU citizens continued to be deported even during the Covid-19 national lockdowns in the UK. Deportations that happened during the pandemic were also selective, with an overrepresentation of citizens of poorer EU member states. Between April and June 2020 when Britain was hard hit by the first Covid wave, the only chartered deportation flights were headed for Europe, removing 188 EU citizens to Romania, Poland and Lithuania, as well as 97 to Albania (Radziwinowiczówna and Lewis 2023). The timing of these deportations was fundamental and demonstrated that the ‘hostile environment’ policy was undeterred by a serious global health crisis which otherwise limited travel (Walsh 2020). Guerrina and Masselot (2018) note that Brexit ‘carries a substantial risk to the interests of traditionally marginal groups (including women) who have hitherto been covered by the EU legal framework’.

EU nationals post Brexit are in the same category as all other third-party nationals in terms of employment and welfare. The EU withdrawal framework makes it difficult to draw on EU law for challenges as EU law is no longer supreme in the UK. Not having the CJEU and EU Charter generates vagueness as to what actually is an existing right anymore despite other UK domestic equalities legislation. There is a direct loss of the EU Charter of Fundamental Rights, although its general principles carry over into post-Brexit times through legislation and case law already in place as well as the general principles of common law. However, the EUSS scheme has been challenged through judicial review in UK courts. The Independent Monitoring Authority brought a judicial review proceeding against the Home Office in the High Court to challenge the requirement of a second application. Settled status is available to individuals who are able to demonstrate at least five years of continuous residence. Pre-settled status, also known as Limited Leave to Remain, is a temporary form of stay in the UK. It is valid for five years. The pre-settled status of millions of EU nationals and their family members opened in August 2018 but expired in the second half of 2023. This created uncertainty about their future in the UK. The UK’s position was that pre-settled status could not be extended and is not upgraded automatically. Therefore, a subsequent application for settled status (officially called ‘Indefinite Leave to Remain’) had to be made before the expiry date of pre-settled status. However, this was only possible once the applicant had completed five years of continuous residence in the UK. Those who failed to make this application were at risk of losing their right to remain in the UK. The High Court ruled in December 2022, Independent Monitoring Authority v Secretary of State for the Home Department [2022] EWHC 3274 (Admin) that applicants granted pre-settled status should not lose their rights of residence if they do not make another application for settled status. The court based its decision on Article 13(4) of the Withdrawal Agreement between the UK and the EU (2020), which states that a right of residence can only be lost in very specific circumstances and could not just be lost through the expiry of a previously held status. The court held that settled status rights accrue automatically, without the need of a second application if the other conditions (such as the five-year residence requirement) are satisfied. While the case was a victory for EU nationals, it illustrates how EU nationals have experienced categorical exclusion in a manner like commonwealth nationals. Like the earlier arrivals, EU nationals have also had to challenge the loss of their legal status in the courts.

In 2023 the ECJ dismissed three separate actions brought by three British citizens who were residing overseas in other member states of the EU for a long time but did not acquire any other EU nationality (Court of Justice of the European Union 2023). As a result of Brexit, they lost their EU citizenship rights, and they wanted the ECJ to recognise them as EU citizens despite Brexit. They argued that they had exercised their free movement to travel and reside in other EU states prior to Brexit and that this means their EU citizenship had already permanently attached to them. The ECJ dismissed the actions and said that they had automatically lost their status as citizens of the EU after Brexit. The court noted that the decision to withdraw is for the concerned member state alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice. Accordingly, for the British citizens, the loss of the status of citizen of the EU, and consequently the loss of the rights attached to that status, was an automatic consequence of the sole sovereign decision taken by the United Kingdom to withdraw from the EU, and not of the withdrawal agreement or the Council’s decision. This decision makes it clear that individuals deeply affected by the changing political and legal landscape of Brexit are re-bordered without any ability to change their own circumstances and no redress in the EU’s court system anymore. Their mobility, residence and political rights are completely reconfigured without any input from them. Brexit, like Windrush, is an example where law channels power as it acts in its first dimension, evident in action, and proactively rolling back rights such as free movement (Lukes 2021).

Conclusion

The second half of the twentieth century witnessed the metamorphosis of Britain from a global, imperial power to a full member of the modern regional partnership that is the EU (Harfield 2007). Both supra-national memberships analysed in this book so far (empire and EU) closely resemble certain aspects of national citizenship which are exclusionary. In the case of empire, it was allegiance to an imperial power, while for EU citizenship it was loyalty to certain regional values which were deemed ‘European’ that excluded others who did not belong or remained at the fringes (mostly third-country nationals). Yet a narrative of EU solidarity and cultural belonging and genuine enjoyment of EU rights was also significantly at odds with other global arrangements of appropriation, such as colonial imperialism, and this narrative may have led to the eventual exit of the UK which missed its ‘first amongst equals’ position of earlier decades.

The situation of EU nationals in the UK during and after the Brexit process is especially instructive for assessing what kind of membership can support the rights of mobile populations who seek long-term status in their place of residence. The new immigration framework for EU nationals drawing on the same points-based system for work and similar visas as for non-EU foreigners who come to the UK revokes the special status of EEA nationals. Yet, this change is not abrupt, and the borders have been shifting for a while as exemplified through the heightened deportations of EEA nationals who are out of work prior to Brexit and of Commonwealth nationals who could not produce proof of right to reside.

As the gap between the rights of citizens and those of non-citizen residents diminished through the rise of the universal human rights framework, the lasting significance or practical value of nation-state citizenship became more questionable. Yet holding such citizenship still plays a significant role in determining a person’s life chances, and its value depends on the guarantees of the state to which one belongs. The promise of human rights is not yet that of an effective international leveller in terms of rights, therefore state membership remains a powerful determinant of who does or does not enjoy rights. It determines not only political powers, but where people can live and work and what other countries they can visit, live or work in. In most countries only citizens are guaranteed rights to vote and stand for election at the level of national politics, and they have greater security with respect to rights and benefits of other kinds. Where it is modified or softened at the edges (as has happened in free-movement areas) it is through the operation of a confluence of empire bordering, nation-state bordering and global bordering which operate in different situations to separate foreigners from those who really belong. Who is foreign varies from time to time and it can be those amongst us, those who seek to be one of us, those related to us or indeed those seeking shelter on our soil who are increasingly forsaken in contemporary times.

Notes

1. 1.  The Conference of the Representatives of the Governments of the Member States adopting the Treaty on European Union adopted Declaration No 2, which is annexed to the Final Act of the Treaty on European Union.

2. 2.  Stefania Bariatti, European Group for Private International Law. https://gedip-egpil.eu/fr/2022/a-new-cjeu-judgment-on-the-loss-of-the-nationality-of-a-member-state/.

3. 3.  Factsheets on the European Union, ‘Migration and Asylum: A Challenge for Europe’, 2018. https://www.europarl.europa.eu/RegData/etudes/PERI/2017/600414/IPOL_PERI(2017)600414_EN.pdf

4. 4.  Tampere Programme in October 1999. See Factsheets on the European Union, ‘Asylum Policy, 2025. https://www.europarl.europa.eu/factsheets/en/sheet/151/asylum-policy#:~:text=With%20the%20adoption%20of%20the%20Tampere%20Programme%20in,valid%20throughout%20the%20EU%20in%20the%20longer%20term.

5. 5.  See UK government website, ‘Apply to the EU Settlement Scheme’, 2021. https://www.gov.uk/settled-status-eu-citizens-families.

6. 6.  Benjamin Kentish, ‘Brexit: Deportations of EU Citizens Soar Since Referendum’, 12 September 2017. https://www.independent.co.uk/news/uk/politics/brexit-latest-eu-citizens-deportations-rise-uk-home-office-referendum-a7935266.html.