(Source: IIMA Geneva 2018)
Name: Ilse van Vloten
Mastertrack: International & European Law Supervisor: Drs. Mr. E.T.W. van Roemburg Date of submission: 7-1-2019
Master’s thesis:
Withdrawing children’s EU
citizenship rights
Possible protection as acquired rights under public international law against
withdrawal and possible violations of the ECHR and UNCRC in case of withdrawal.
1 Abstract
This thesis provides an in-depth response to the question whether children’s EU citizenship rights can be safeguarded as acquired rights under public international law against
withdrawal, and to what violations of children’s rights under the ECHR and UNCRC withdrawal could lead. Descriptive research has been conducted in relation to protection as acquired rights under public international law and possible violations of the ECHR. Further, normative research has been conducted with regards to the possible violations of the UNCRC. This thesis exposes the impact on the withdrawal of children’s EU citizenship rights in case of a ‘cold’ Brexit. To understand the concept of EU citizenship, the applicable law and landmark cases of the CJEU, concerning children and their EU citizenship rights, will be explored. In light of Brexit, commentators have made claims that protection is provided against
withdrawal by the doctrine of acquired rights, under article 70(1)(b) VCLT and under customary international law. This thesis assesses the different views of academics, in the context of the ability to safeguard children’s EU citizenship rights against withdrawal. While Article 70(1)(b) VCLT will not be able to safeguard children’s EU citizenship rights, it cannot be precluded that the customary rule on acquired rights will be able to provide protection. Claims have also been made about the possible violations of Article 8 ECHR, Article 8 in conjunction with Article 14 ECHR, and of Article 1 of Additional Protocol 1 to the ECHR. This thesis will analyse those rights in light of EU citizenship rights, sketch possible
situations arising after Brexit and make an assessment in abstracto. Research has shown the sketched situations are likely to interfere with these rights under the ECHR. Lastly, this thesis explores the possible violations of the UNCRC. As there is a deficiency on academic writings in the context of the withdrawal of children’s EU citizenship and possible violations arising under the UNCRC, the thesis will first describe the relevant provisions and apply them to the withdrawal of children’s EU citizenship rights and the situations that will arise as a
consequence. An assessment will be made in abstracto. Research has shown that situations arising after a cold Brexit are likely to interfere with children’s rights under the following UNCRC articles: Article 2, Article 3, Article 12, Article 9 in conjunction with Article 10 and Article 26. As a conclusion, this thesis provides an overview of the possible protection as acquired rights under public international law and possible violations of the ECHR and UNCRC in light of the withdrawal of children’s EU citizenship rights. In addition, the thesis provides recommendations to UK’s and EU’s Brexit negotiators on what can be done to diminish the risk on violations of children’s rights.
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Index
1. Introduction ... 3
1.1. Methodology ... 4
2. Children’s EU citizenship rights ... 6
2.1 Children’s EU citizenship rights: legislation ... 6
2.2 Children’s EU citizenship rights: case law ... 8
3. The protection of children’s EU citizenship rights under the doctrine of acquired rights ... 12
3.1 The doctrine of acquired rights ... 13
3.2 Article 70(1)(b) VCLT ... 13
3.3 Customary international law ... 14
4. Withdrawing children’s EU citizenship rights: possible violations of the ECHR ... .17
4.1 Article 8 ECHR and Article 14 ECHR ... 18
4.2 Article 1 Additional Protocol 1 to the ECHR ... 21
5. Withdrawing children’s EU citizenship rights: possible violations of the UNCRC ... 22
5.1 Non-discrimination ... 23
5.2 Best interest of the child ... 24
5.3 The child’s right to be heard and express his or her views ... 25
5.4 Separation from parents and family reunification ... 27
5.5 Social security ... 28
6. Concluding words and recommendations ... 29
7. Bibliography ... 35
3 1. Introduction
Winston Churchill first suggested a common European citizenship after the Second World War. In his speech at the University of Zurich, in 1946,1 he questioned: ‘[…] why should there not
be a European group which could give a sense of enlarged patriotism and common citizenship to the distracted peoples of this mighty continent?’2
Today, European Union (EU) citizenship is conferred on ‘every person holding the nationality of a Member State’, and is additional to national citizenship.3 There are many rights
deriving from EU citizenship. These rights enable EU citizens to ‘move and reside freely within the territory of the EU’.4
In 2016, the people of the United Kingdom (UK) voted in a referendum to leave the EU5
and on 14 November 2018 a draft Withdrawal Agreement was agreed under Article 50 Treaty on the European Union. The draft Withdrawal Agreement covers a transition period of 21 months after the deadline on 29 March 2019 in order to elaborate the rules and relationship between the UK and the EU. While the UK will resign from all EU institutions, it is still be bound by EU law during this period. With regard to citizens’ rights, ‘UK citizens in the EU, and EU citizens in the UK, will retain their residency and social security rights’.6 However,
both UK’s Members of Parliament and the European Parliament still need to approve the draft Withdrawal Agreement.7 As commented by the Huffington Post, during the Brexit discussion,
little attention is paid to the consequences for children.8 This then begs the question, what is the
impact of withdrawing children’s EU citizenship rights in case of a ‘cold Brexit’9: can those
rights be safeguarded as acquired rights under public international law against withdrawal and to what violations of children’s rights under the European Convention on Human Rights (1950) (ECHR) and the United Nations Convention on the Rights of the Child (1989) (UNCRC) could withdrawal of EU citizenship rights lead?
1 Maugham 2018.
2 W. Churchill’s speech delivered at the University of Zürich, 19 September 1946: https://rm.coe.int/16806981f3
(last accessed 3 January 2019).
3 Article 20(1) TFEU.
4 European Commission Freedom of Movement. 5 BBC Referendum Results;
Hunt & Wheeler 2018.
6 BBC Reality Check 2018. 7 Hunt & Wheeler 2018;
BBC Reality Check 2018;
European Commission TF50 (2018) 55, p. 1.
8 Homden 2017.
9 The term ‘cold Brexit’ refers to the scenario where the UK will have to leave the EU on 29 March 2019
4 1.1 Methodology
This thesis intends to answer the following question:
Can children’s EU citizenship rights be safeguarded as acquired rights under public international law against withdrawal and to what violations of children’s rights under the ECHR and UNCRC could withdrawal lead?
It is the overall aim of this thesis to analyse, in the context of UK’s withdrawal from the EU, existing claims regarding the protection as acquired rights provided by public international law against the withdrawal of children’s EU citizenship rights, and possible violations of the ECHR and to add a perspective on possible violations of children’s rights under the UNCRC. By exposing possible protection provided by public international law and violations of the ECHR and UNCRC, it is hoped awareness can be raised on the impact of the withdrawal of EU citizenship rights from children in case of a cold Brexit.
This thesis is limited to UK’s withdrawal from the EU. Brexit is a very topical issue as it is the first-time Article 50 TEU has been triggered by an EU Member State.10 The
consequences of Brexit are likely to affect thousands of children.11 Given the scope of this
thesis, other reasons to withdraw EU citizenship rights from children are excluded.
In order to answer the research question, I will first conduct descriptive research in relation to EU citizenship rights. Here, I will look into the Treaty on the European Union (TEU), the Treaty on the Functioning of the European Union (TFEU) (both: Treaties), Directive 2004/38/EC of 29 April 2004 (Citizens Directive), and handbooks pertaining to such legislation. Given the permitted size of this thesis, only the most relevant rights for this thesis will be set out. I will illustrate how EU citizenship rights specifically relate to children by expounding landmark cases of the Court of Justice of the European Union (CJEU), the judicial institution of the EU.12 To determine which cases can be considered landmark cases, I relied on a
commentary on the Citizens Directive and their recognition by scholars as referred to in the text. Here, it is the intention to provide the reader with an insight into EU citizenship rights in practice and therefore demonstrate how EU citizenship rights specifically relate to children.
10 Kertész 2016, p. 93.
11 Children’s Commissioner for England 2017. 12 Presentation Court of Justice of the European Union.
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In the second part, I will conduct descriptive research on the claim made by commentators13 that the doctrine of acquired rights will safeguard EU citizenship rights against
withdrawal. In Chapter 3, I will analyse this claim and assess whether this is a rightful claim on the basis of academic writings, providing the reader with arguments and counterarguments. I will set out the meaning of ‘acquired rights’ and examine the doctrine of acquired rights under Article 70(1)(b) of the Vienna Convention on the Law of Treaties (VCLT) and its applicability to the UK’s withdrawal from the EU. I will also examine whether the doctrine of acquired rights under customary international law will provide for protection against the withdrawal of EU citizenship rights. In order to assess the existence of the doctrine of acquired rights as a customary international rule, I will rely on handbooks, commentary on the VCLT and academic writings. As to the applicability to Brexit, I will again set out arguments and counterarguments of various scholars.
In the third part, I will conduct descriptive research on the claim that withdrawal of EU citizenship rights could possibly lead to violations of Article 8, Article 8 in conjunction with Article 14 of the ECHR14 and of Article 1 of Additional Protocol 1 to the ECHR (A1P1).15
Therefore, in Chapter 4, I will analyse the claims and assess whether those are rightful claims by engaging with the different views of academics on the applicability of the ECHR provisions to the withdrawal of EU citizenship rights, providing the reader with arguments and counterarguments. Here, situations will be sketched and an assessment will be made in abstracto. Whether these situations will actually violate the provisions of the ECHR needs to be assessed on a case-by-case basis and falls outside the scope of this thesis.
As the doctrine of acquired rights and the ECHR do not solely concern children, I wanted to provide the reader with a more specific view on possible violations of children’s rights when withdrawing their EU citizenship rights. Here, I noticed that there was an absence of academic writings on this subject. Therefore, in the last part of this thesis, I will conduct normative research on possible violations of children’s rights under the UNCRC when withdrawing children’s EU citizenship rights. In light of the UNCRC, NGO’s have raised their concerns on the consequences of Brexit16 and it particularly contains the rights of children.
Other human rights treaties also contain provisions relating to children, besides general human
13 See e.g. House of Lords 2016, Leave Alliance 2016, Waibel 2018.
14 See e.g. Alegre 2016, Barnard & Speaight 2016 oral, House of Lords 2016.
15 See e.g. House of Lords 2016, Fernández Tómas & López Garrido 2017, Austin-Greenall & Lipinska 2017. 16 See e.g. NICCY & OCO 2018, Brexit and Children Coalition 2017.
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rights provisions, but the UNCRC is designed solely for children.17 I will evaluate applicable
provisions and how these provisions should be interpreted, using handbooks and academic writings. Here, it must be noted that other provisions laid down in the UNCRC could also apply to the withdrawal of children’s EU citizenship rights as a result of Brexit, but given the permitted size of this thesis, the research is limited to Article 2 UNCRC, Article 3 UNCRC, Article 12 UNCRC, Article 9 in conjunction with Article 10 UNCRC and Article 26 UNCRC. From the provisions that are included, I want to sketch situations in abstracto that could arise when children’s EU citizenship rights will be withdrawn after Brexit. Whether these situations will actually violate the provisions of the UNCRC needs to be assessed on a case-by-case basis and falls outside the scope of this thesis. In this section, I want to contribute to the existing claims, and inform the reader of the possible consequences of Brexit on children’s rights under the UNCRC.
In conclusion, I will set out the results of the research and finish with recommendations for both the EU’s and the UK’s Brexit negotiators on what can be done to diminish the risks on violations of children’s rights.
2. Children’s EU citizenship rights
EU citizenship is laid down in Article 9 TEU and Articles 18 to 25 TFEU.18 There are two
aspects to EU citizenship: first, EU citizenship is acquired by virtue of being a citizen of a Member State and second, EU citizenship is additional to national citizenship.19 The same
applies to children: a child acquires EU citizenship by being a citizen of a Member State.
2.1 Children’s EU citizenship rights: legislation
Firstly, by virtue of being an EU citizen, children have ‘the right to move and reside freely’ in the territory of EU Member States, as laid down in Article 20(2)(a) and 21 TFEU,20 known as
the freedom of movement. The freedom of movement is subjected to ‘limitations and condition laid down in the Treaties and by measures adopted to give them effect’.21 The Citizens Directive
is such an adopted measure.22
17 CRAE UNCRC.
18 See for the full text of all relevant articles in this chapter Appendix 1. 19 European Parliament Factsheet EU Citizens.
20 House of Lords 2016, p.7. 21 Article 21(1) TFEU;
Eijsbouts, Jans, Prechal & Senden, p. 136; Giovanetti 2017, par. 4.
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Under Article 3 Citizens Directive, EU citizens have the right to move and reside freely within the territory of a Member State, and to be accompanied by family members.23 As we
will see in the next chapter, to be accompanied by family members is of fundamental meaning for children.
Once EU citizens have entered a host Member State, they can obtain three consecutive rights of residency under the Citizens Directive.24 First, EU citizens and their family members
obtain the right to reside up to three months as laid down in Article 6 Citizens Directive. This right is not subjected to any requirements except for the possession of proof of identity.25 In
this period, EU citizens and their family members will retain this residence right as long as they ‘do not become an unreasonable burden on the social assistance system’.26
Secondly, EU citizens and their family members can obtain the right to reside for more than three months, as long as they satisfy one of the criteria laid down in Article 7(1) Citizens Directive: the EU citizen is a ‘worker or self-employed’, or ‘has sufficient resources […] not to become a burden on the social assistance system of the host Member State’ and has ‘comprehensive sickness insurance’, or is enrolled in education and has sickness insurance and is able to financially provides for itself, or is a family member of an EU citizen that fulfils one of the beforementioned criteria.27 If lost, the ‘worker’ or ‘self-employed’ status can be retained under certain conditions.28
Thirdly, EU citizens can obtain the right of permanent residence if they have ‘legally’ resided in a host Member State for ‘a continuous period of five years’.29 The term ‘legally’
Giovanetti 2017, par. 5.
23 Article 3(1) Citizens Directive;
‘Family members’ include the spouse, the registered partner, descendants aged under 21 or who are dependent upon the spouse or registered partner and the dependent direct relatives in the ascending line and those of the spouse or registered partner as laid down in Article 2(2) of the Citizens Directive;
Giovanetti 2017, par. 6.
24 Eijsbouts, Jans, Prechal & Senden, p. 136 25 Article 6 Citizens Directive;
House of Lords 2016, p. 8, Box 1.
26 Article 14(1) Citizens Directive;
Giovanetti 2017, par. 9.
27 Article 7(1) Citizens Directive;
House of Lords 2016, p. 8-9, Box 1; Giovanetti 2017, par. 10.
28 A person who lost his or her status as worker or self-employed, will retained this status if he/she is unable to
work due to illness or as a result of an accident; he/she is involuntarily unemployed and has registered as a job-seeker or embarks vocational training as laid down in Article 7(3) in conjunction with Article 14 of the Citizens Directive, see Giovanetti QC 2017 par. 11.
29 Article 16(1) Citizens Directive;
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refers to the fulfilment of one of the conditions laid down in Article 7(1) Citizens Directive.30
This right can only be lost if the EU citizen is absent from the host Member State for more than ‘two consecutive years’.31 However, there are exceptions, including absence due to
‘compulsory military service […] pregnancy and childbirth, serious illness, study or vocational training and posting in another Member State or a third country’.32
The aforementioned residence rights are governed by the principle of equal treatment as laid down in Article 24 Citizens Directive. Based on this principle, EU citizens and their family members and the nationals of the host Member State are treated equally.33 This
principle also includes the access to benefits for EU citizens and their family members in host Member States, with certain exceptions laid down in paragraph 2.34
2.2 Children’s EU citizenship rights: case law
How the rights discussed in Chapter 2.1 relate to children, can be assessed best by exploring landmark cases of the CJEU. The CJEU is the judicial body of the EU and is tasked with ensuring ‘the uniform interpretation and application of EU law’ and assessing ‘the legality of EU measures’.35 In the following case law the CJEU has interpreted EU citizenship rights
specifically in situations where children were concerned.
First, the CJEU in the Garcia Avello case36 established the intrinsic link between EU
citizenship and EU law.37 The case concerned two children living in Belgium, who held both
Belgian and Spanish nationality.38 According to Belgian nationality law, the children obtained
their father’s family name by birth. The parents wanted to change this into a combined surname based on Spanish law and tradition.39 The request was denied by the Belgian
Minister of Justice who stated that the request was ‘habitually rejected on the ground that, in
30 House of Lords 2016, p. 9, Box 1. 31 Article 16(4) Citizens Directive. 32 Article 16(3) Citizens Directive;
House of Lords 2016, p. 9, Box 1.
33 Article 24 Citizens Directive.
34 Exceptions are: with regard to the right of residence up to three months, or where appropriate, a jobseeker is
entitled to a longer period than three months, or with regard to maintenance aid for students before acquiring permanent residence, other than workers, self-employed persons, persons retaining worker or self-employed status and their family members, as laid down in Article 24(2) Citizens Directive.
35 Presentation Court of Justice of the European Union. 36 Garcia Avello case, par. 1-45;
Giovanetti 2017, par. 29; Guild, Peers & Tomkin, p. 48.
37 Giovanetti 2017, par. 29;
Guild, Peers & Tomkin, p. 48.
38 Garcia Avello case, par. 13. 39 Garcia Avello case, par. 15 and 19.
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Belgium, children bear their father’s surname’.40 The parents argued that this consideration
treated the children’s Belgian nationality the same as their dual nationality, which in their opinion were different and therefore the refusal was discriminative. Here, it is important to note that in case of conflict between the laws of states, Belgium only takes into account the Belgian nationality.41 The CJEU considered that while EU citizenship ‘is not, however,
intended, to extend the scope ratione materiae of the Treaty also to internal situations which have no link with [EU] law’, in this case there was a link with EU law because the children had always legally resided in Belgium, a Member State, and held dual nationality of two Member States, Belgium and Spain.42 The non-discrimination rule prohibited the Belgian
restriction on ‘the effects of the grant of the [Spanish] nationality by imposing an additional condition for recognition of that nationality with a view to the exercise of the fundamental freedoms provided for in the Treaty’.43
The CJEU in the Chen case44 continued this line of reasoning. Chen, a non-EU citizen,
gave birth to her daughter in Belfast, who acquired Irish nationality based on Irish nationality law.45 Due to the daughter’s Irish nationality, the mother had the right to reside in Cardiff,
where they settled.46 The UK refused to grant the requested long-term residence permit on the
ground that the baby daughter was not exercising treaty rights and therefore the mother did not have a right to reside.47 The CJEU rejected UK’s conclusion that a baby is not able to
exercise treaty rights.48 To refuse the mother the right to reside with the child ‘would deprive
the child’s right of residence of any useful effect’.49 The CJEU concluded that it does not
matter that the child is unable to provide for itself financially, as long as a family member provides for the financial resources.50
40 Garcia Avello case, par. 18.
41 Verlinden 2005, under factual background. 42 Garcia Avello case, par. 26-28.
Giovanetti 2017, par. 29;
Guild, Peers & Tomkin, p. 48-49.
43 Garcia Avello case, par. 28;
Guild, Peers & Tomkin, p. 48-49.
44 Chen case, par. 1-48;
Giovanetti 2017, par. 30;
Guild, Peers & Tomkin, p. 69-70.
45 Giovanetti 2017, par. 30;
Section 6(1) and (3) of the Irish Nationality and Citizenship Act of 1956.
46 Chen case, par. 7-11;
Giovanetti 2017, par. 30.
47 Chen case, par. 14. 48 Chen case, par. 26;
Giovanetti 2017, par. 30.
49 Chen case, par. 45. 50 Chen case, par. 27-33;
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The Zambrano case51 on the interpretation of Articles 20 TFEU and 3(1) Citizens
Directive52 concerned two children with Belgian nationality with Colombian parents. The
parents were declined asylum in Belgium, but could not be returned on the basis of the principle of non-refoulement.53 Mr Zambrano lost his job because he was not legally
permitted to work based on his immigration status and was forced to apply for benefits. The request was denied because Mr Zambrano did not have the right to reside.54 The CJEU
considered that the children never made use of their EU freedom of movement.55 Therefore,
Mr Zambrano, upon whom the children were dependent56, could not apply for benefits as the
family member of an EU citizen under the Citizen Directive. However, the two children did have EU citizenship.57 The key element in the CJEU’s reasoning was that EU citizenship
implies the prohibition of measures that deprive EU citizens of the ‘genuine enjoyment’ of their EU citizenship rights.58 The refusal to grant Mr Zambrano the right to reside and a valid
work permit, was considered to be such a precluded measure.59 Any opposite conclusion
would force the EU citizen children ‘to leave the territory of the Union in order to accompany the parents’ which would prevent them from exercising their treaty rights.60
In the Dereci case61, the CJEU gave elucidation on the ‘genuine enjoyment’
criterion.62 In this case, multiple non-EU nationals requested a residence permit to reside with
Austrian family members, including children.63 The request was refused on the basis that the
EU citizens never made use of their freedom of movement and therefore the non-EU nationals
Giovanetti 2017, par. 31.
51 Zambrano case, par. 1-46;
Giovanetti 2017, par. 33;
Guild, Peers & Tomkin, p. 62-63.
52 Zambrano case, par. 1, 3.
53 Article 33(1) 1951 United Nations Convention relating to the Status of Refugees: ‘No Contracting State shall
expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’.
54 Zambrano case, par. 14-29. 55 Guild, Peers & Tomkin, p. 62. 56 Zambrano case, par. 35. 57 Guild, Peers & Tomkin, p. 62. 58 Zambrano par. 42;
Guild, Peers & Tomkin, p. 62.
59 Zambrano case, par. 41;
Guild, Peers & Tomkin, p. 62.
60 Zambrano case, par. 44. 61 Dereci case, par. 1-102;
Guild, Peers & Tomkin, p. 63; Giovanetti 2017, par. 39.
62 Guild, Peers & Tomkin, p. 63. 63 Guild, Peers & Tomkin, p. 63;
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did not have a right of residence under the Citizens Directive as family members of an EU citizen.64 However, the CJEU reiterated that EU citizenship precludes measures that deprive
EU citizens from the genuine enjoyment of their EU citizenship rights.65 By way of
illustration, the CJEU mentioned that the ‘genuine enjoyment’ criterion ‘refers to situations in which the Union citizen has, in fact, to leave the territory of the Member State of which he is a national, but also the territory of the Union as a whole’.66 However, CJEU concluded that the
sole economic reasons for the family to reside together in a host Member State, are not enough to conclude that the EU citizen has no other choice than to leave the EU territory as a whole if those family members are refused a right to reside.67
In the O. and Others case68, the CJEU delimited the situations to which the ‘genuine
enjoyment’ criterion applies. This case concerned non-EU citizen mothers married to Finnish husbands with whom they had children with Finnish nationality and who never left Finland. The mothers divorced their husbands and obtained sole custody over their children.
Subsequently, the mothers remarried non-EU husbands, with whom they had a non-EU child.69 The mothers unsuccessfully applied for residence permits for their non-EU husbands.
The CJEU reiterated that the children had never left Finland and thus never made use of their freedom of movement. Therefore, their situation did not fall under the scope of the Citizens Directive.70 Referring to Zambrano, the CJEU concluded that the refusal did not leave the
children with no other choice than to leave the territory of the EU as a whole because the mothers held permanent residence permits.71 Besides this, the CJEU also considered whether
the children formed part of a ‘reconstituted family’ and who had custody of the children.72
The CJEU concluded that EU citizenship does not preclude the refusal to grant a non-EU national a residence permit in order to reside with a non-EU national partner who is the
64 Dereci case, par. 56;
Guild, Peers & Tomkin, p. 63.
65 Dereci case, par. 64. 66 Dereci case, par. 66;
Guild, Peers & Tomkin, p. 63.
67 Dereci case, par. 68;
Guild, Peers & Tomkin, p. 63.
68 O. and Others case, par. 1-83;
Guild, Peers & Tomkin, p. 64.
69 O. and Others case, par. 18-32;
Guild, Peers & Tomkin, p. 64.
70 O. and Others case, par. 42;
Guild, Peers & Tomkin, p. 64.
71 O. and Others case, par. 50;
Guild, Peers & Tomkin, p. 64.
72 O. and Others case, par. 51;
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mother of an EU citizen child from a previous marriage and of the non-EU national child from their own marriage. However, this may not lead to ‘the denial of the genuine enjoyment’ of EU citizenship rights.73
Last in this line of reasoning is the Chavez-Vilchez case74 regarding EU citizenship
and the access to benefits. Here, CJEU broadened its reasoning from Zambrano regarding parents with dependent children. In this case, non-EU mothers applied for social assistance and child benefit to care for their EU citizen children. The fathers, also EU citizens, were not or hardly involved with their children’s upbringing. The applications for social assistance and child benefit were denied because the mothers did not have a right to reside.75 The referring
court questioned which weight was to be given to the presence of the father in the host Member State.76 The CJEU considered that although it is a relevant factor that the father
would be willing and able to care for the child on a daily basis, it would not be sufficient. Still, there would be such a ‘relationship of dependency’ between the non-EU mother and the child, that the child would be forced to leave the territory of the EU upon refusal of the mother’s right to reside.77 Whether this is the case, must be assessed taking into account all
specific circumstances ‘in the best interest of the child’.78
3. The protection of children’s EU citizenship rights under the doctrine of acquired rights In Chapter 2, we have seen which rights derive from EU citizenship and how EU citizenship rights relate to children in practice. The question is then: can these EU citizenship rights be protected against the withdrawal in case of a cold Brexit? It has been argued that on the one hand, Article 70(1)(b) VCLT79 which states that termination of a treaty does not affect any
acquired rights, would provide protection and on the other hand, the doctrine of acquired rights under customary international law would provide protection.80 In order to assess these claims,
we first need to know what is meant by ‘acquired rights’.
73 O. and Others case, par. 58;
Guild, Peers & Tomkin, p. 65.
74 Chavez-Vilchez case, par. 1-79;
Haag 2017.
75 Chavez-Vilchez case, par. 21-29. 76 Chavez-Vilchez case, par. 34. 77 Chavez-Vilchez case, par. 71. 78 Chavez-Vilchez case, par. 72.
79 See for the full text of the relevant articles in this chapter Appendix 2. 80 House of Lords 2016, p. 25;
Leave Alliance 2016; Waibel 2018, p. 440-444.
13 3.1 The doctrine of acquired rights
The acquired rights doctrine originally developed in light of the protection of property rights,81
is now explicitly laid down in Article 70(1)(b) VCLT and is recognised as principle in public international law by scholars82 and in judicial decisions83.
It must be noted that scholars differ in defining ‘acquired rights’.84 Lalive stated that the
notion of ‘acquired rights’85 at least insinuates a certain level of protection and describes them
as: ‘a kind of reinforced individual power and, according to some, a right acquired permanently and immutably’.86 Douglas-Scott defines acquired rights as ‘those rights not automatically
revoked if a treaty or law no longer applies […] even in the event of a change in the ultimate power over a country (e.g. a grant of independence, secession or exit from the EU).’87
According to Lalive, it is too restrictive to solely speak about an acquired right as a protected right as ‘it is a whole social relationship, organized and regulated by law’.88 It is apparent that
acquired rights ought to be protected ‘in a different legal system’89, under a different authority,
irrespective of time, and thus consist of an element of non-retroactivity.90
3.2 Article 70(1)(b) VCLT
As claimed by e.g. the Leave Alliance91, Article 70(1)(b) VCLT would safeguard EU
citizenship rights against withdrawal.92 So can Article 70(1)(b) VCLT safeguard EU citizenship
rights?
First of all, the applicability of Article 70(1)(b) VCLT to a concluded withdrawal agreement under Article 50 TEU, is subjected to criticism. Fernández Tómas and López Garrido
81 House of Lords 2016, p. 26.
82 See e.g. Lalive, p.146, McNair 1957, p. 16-19. 83 HSF 2016, p. 2;
Lalive, p. 145-146;
Permanent Court of International Justice, Case concerning certain German Interests in Polish Upper Silesia
(Germany v Poland), 1925 (ser. A) No. 6 (Aug. 25), p. 903 and 906;
Arbitration between Saudi Arabia and Arab Aramco Oil Company, 27 ILR 1963, p. 205.
84 Fernández Tómas & López Garrido 2017, p. 14.
85 Also known as ‘vested’ or ‘executed’ right, see also Douglas-Scott 2016 and Lalive. 86 Lalive, p. 150.
87 Douglas-Scott 2016. 88 Lalive, p. 150.
89 Fernández Tómas & López Garrido 2017, p. 14. 90 Fernández Tómas & López Garrido 2017, p. 14, 45;
Dörr & Schmalenbach, p. 1295.
91 A pro-Brexit campaigning group, advocating for ‘Flexcit’(http://leavehq.com/). 92 Douglas-Scott 2016;
Austin-Greenall & Lipinska 2017, p.12. Leave Alliance 2016.
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have stated that the Treaties are concluded between Member States93 whereas a withdrawal
agreement is ‘concluded on behalf of the Union by the Council’.94 Consequently, the VCLT
would not apply to the withdrawal agreement because the VCLT only applies to treaties between States.95
In contrast, the application of the VCLT to relations between States and international organizations is not necessary precluded. As Fitzmaurice and Elias stated, it follows from the wording of Article 3(c) VCLT that although the VCLT does not apply to the relations between States and international organizations, this does not affect ‘the application of the [VCLT] to the relations of States as between themselves under international agreements to which other subjects of international law are also parties’.96 Consequently, acquired rights that govern the
relationship between Member States under EU law would be protected under Article 70(1)(b) VCLT against withdrawal. As a result, the statement of Fernández Tómas and López Garrido seems too restrictive. However, it still does not follow that the VCLT would apply to a treaty concluded between a State and an international organization, such as a withdrawal agreement under Article 50 TEU.
In addition, the International Law Commission specifically clarified that Article 70 VCLT does not cover the protection of acquired rights of ‘individuals’,97 such as EU citizenship
rights. Therefore, Article 70(1)(b) VCLT will not be able to provide for protection against the withdrawal of children’s EU citizenship rights.
3.3 Customary international law
Although Article 70(1)(b) VCLT will not safeguard children’s EU citizenship rights, it is claimed that EU citizenship rights would be protected against withdrawal as acquired rights under customary international law.98 This would be in line with Article 43 VCLT99 which states
that the withdrawal from a treaty ‘shall not in any way impair the duty of any State to fulfil any
93 Article 49(2) TEU. 94 Article 50(2) TEU. 95 Article 1 VCLT;
Fernández Tómas & López Garrido 2017, p. 27; Vaughan Lowe, par. 25;
ILC 1966, p. 265.
96 Fitzmaurice & Elias, p. 17.
97 Dörr & Schmalenbach, p. 1294-1295;
ILC 1966, p. 265;
Austin-Greenall & Lipinska 2017, p. 13.
98 House of Lords 2016, p. 25.
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obligation embodied in the treaty to which it would be subject under international law independently of the treaty’,100 and thereby refers to obligations under customary international
law.101
The International Court of Justice (ICJ) has considered that in order to establish a customary rule, acts of States must ‘amount to a settled practice’ and when carrying out those acts, the States must believe that the practice ‘is rendered obligatory by the existence of a rule of law requiring it’, i.e. opinio juris.102 It is important to note that a certain practice can only
become a customary rule if it is governed by the opinio juris.103
Article 70 VCLT reflects such a customary rule,104 which has been confirmed as such
by the ICJ on several occasions. For example, in the Gabčikovo-Nagymaros Project case, the ICJ stated that the status of customary law applies ‘in many respects’ to the provisions laid down in the VCLT concerning the termination and suspension of treaties.105 As to the existence
of opinio juris, the drafting process reflects the opinio juris as it ‘was only subject to minor amendments […] and was unanimousy adopted’ afterwards, which illustrates the acceptance of and consensus on its content.106
In addition, the existence of opinio juris goes beyond its expression during the drafting of the VCLT. As Villiger refers to the statement of Nollkeamper, the customary status of the rule reflected in Article 70 VCLT ‘was not newly invented in the International Law Commission. It is closely related to well-established principles of acquired rights, legal certainty, non-retroactivity of the law and the doctrine of inter-temporal law’.107
The following question then arises, would the customary rule on acquired rights be able to safeguard EU citizenship rights? The beginning of Article 70 VCLT mentions: ‘unless the treaty otherwise provides’ and indicates an exception to its applicability in case of a lex specialis. The existence of a lex specialis means ‘that if a particular matter is being regulated
100 Article 43 VCLT. 101 Hefler 2012, p. 640-641;
Vaughan Lowe, par. 27.
102 North Sea Continental Shelf cases, par. 77;
Villiger, p. 4, 26.
103 Nollkaemper, p. 130.
104 Dörr & Schmalenbach, p. 1295;
Villiger VCLT, p. 875.
105 Gabčikovo-Nagymaros Project case, par. 46;
See also ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia [South West
Africa] (1971), par. 94;
BIICL 2016, p. 3.
106 Dörr & Schmalenbach, p. 1299. 107 Villiger VCLT, p. 875.
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by a general norm and a more specific one, the special norm shall prevail’.108 In this context,
Sánchez-Barrueco argued that Article 50 TEU is such a lex specialis, as it specifically governs the withdrawal from, and termination of the Treaties.109 Therefore, Article 50 TEU would
prevail over the general customary rule of acquired rights.
Waibel has reached a different conclusion in this context. Whereas the House of Lords EU Committee argues in line with Sánchez-Barrueco, that Article 50 TEU ‘contracts out of customary international law on withdrawal’,110 Waibel argues that Article 50 TEU ‘only partly
contracts out of customary international law as reflected in Article 70 VCLT’.111 Waibel states
that Article 50 TEU as lex specialis on ‘procedure’, proves ‘that Article 50 TEU contracts out of all other rules of international law on treaty withdrawal’. Indeed, considering the text of Article 50 TEU, nothing is mentioned on the withdrawal of ‘rights, obligations or legal situation’.112 Consequently, the customary rule on acquired rights in case withdrawal from a
treaty as reflected in Article 70(1)(b) VCLT would still apply to UK’s withdrawal from the UK. Would the customary rule on acquired rights be able to safeguard children’s EU citizenship rights?
Lalive has described that ‘subjective rights of a public or political character […] usually do not enjoy the protection granted to acquired rights.’113 In particular, he states that ‘individual
liberties […] are not acquired rights’.114
In contrast, Waibel mentions that it is not inconceivable that EU citizenship rights are protected by the doctrine of acquired rights,115 having in mind the introduction of EU
citizenship as ‘legal heritage’ of the EU citizens.116 As a counterargument, Fernández Tómas
and López Garrido state it is something different to ‘recognise the existence of certain rights that “become part of the legal heritage [of individuals]”, […]and quite another to assume that such legal heritage could outlast the termination of the instrument that created it’.117 But given
the fact that the doctrine of acquired rights originally developed in the protection of property 108 Banaszweska 2015, par. 7. 109 Sánchez-Barrueco 2017, under Q25; House of Lords 2017, p. 37. 110 Waibel 2018, p. 441. 111 Waibel 2018, p. 441; House of Lords 2017, p. 60-61. 112 House of Lords 2017, p. 60. 113 Lalive, p. 166. 114 Lalive, p. 188. 115 Waibel 2018, p. 444. 116 Van Gend & Loos case;
Waibel 2018, p. 444.
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rights, and is argued to be linked to the ‘monetary value’ of rights,118 it is possible that EU
citizenship rights could be protected as acquired rights. As Waibel concludes, at least the right of permanent residence would be protected as an acquired right against withdrawal. 119
However, not only the right of permanent residence contains monetary value. Besides permanent residence, the extended right to reside for more than three months also entail the access to benefits and therefore contains monetary value. As a result, the extended right of residence could also be protected against withdrawal as an acquired right.
In theory, it could be possible that children’s EU citizenship rights are protected as acquired rights against withdrawal. In practice, it must be noted that litigating on the basis of customary international law will be problematic. Vaughan Lowe has mentioned that disputes on this matter can be brought before an international arbitration tribunal or an international court but it will be the State acting on behalf of the individual in these disputes. In addition, if the dispute arises regarding ‘the denial of the national’s rights, the case could be brought only after available domestic remedies had been exhausted’.120 Therefore, it can be suggested it
would be more prudent to rely on the ECHR.121
4. Withdrawing children’s EU citizenship rights: possible violations of the ECHR
This brings us to the following question: to what violations of the ECHR could the withdrawal of children’s EU citizenship rights lead? In this context, commentators have claimed that the withdrawal of EU citizenship could interfere with Article 8 ECHR,122 the right to respect for
private and family life, Article 8 in conjunction with Article 14 ECHR, the prohibition of discrimination and of A1P1, the protection of property.123 Whether the withdrawal of children’s
EU citizenship rights could lead to a violation will be an assessment made in abstracto as a cold Brexit and the deriving situations have not taken place yet.
118 See Vaughan Lowe, par. 7;
Waibel 2018, p. 444.
119 Waibel 2018, p. 444. 120 House of Lords 2016, p 27. 121 House of Lords 2016, p. 27-28;
Vaughan Lowe, par. 14, 21.
122 See for the full text of all relevant articles in this chapter Appendix 3. 123 Alegre 2016, under summary, par 5-8;
Barnard & Speaight 2016 oral, under Q32 and Q33; House of Lords 2016, p. 30-34;
18 4.1 Article 8 ECHR and 14 ECHR
After the withdrawal of children’s EU citizenship rights situations may arise in the sphere of Article 8 ECHR in cases of divorce, where there are children concerned and where one parent is required to move to another State after Brexit. As the ILPA described, the child is then ‘faced with separation’, which could possibly violate Article 8 ECHR.124
It is clear from the wording of Article 8 ECHR that it does not confer a right to citizenship in itself. However, the withdrawal of permanent residence can lead to an unlawful interference of Article 8 ECHR, as in the Kuríc case.125 At the time the issue arose, the Socialist
Federal Republic of Yugoslavia collapsed and Slovenia became an independent State. As a result, the applicants lost their right to permanent residence.126 The European Court of Human
Rights (ECtHR) considered that the State has control over the entry and residence of aliens in its territory.127 The ECtHR continued that an interference with Article 8 ECHR can occur when
the persons affected by the interference, ‘possess strong personal or family ties in the host country which are liable to be seriously affected by the application of the measure in question’.128 The ECtHR concluded that the ‘totality of social ties between settled migrants and
the community in which they are living constitute part of the concept of private life within the meaning of Article 8’ and that expulsion is considered to be an interference of that right.129 It is
important to note that the reasoning of the Kuríc case also applies to non-EU citizens with a right to permanent residence.130
Following the Kuríc doctrine, Vidmar ascertains that ‘once you have legally established permanent residency, you retain the right of residence even if the legal status of either your home or host state changes, and, as a result of this change, your new citizenship status alone would no longer give you a right to residence’.131 As a result, persons with a right to reside up
to three months or an extended right to reside are excluded from the reasoning in the Kuríc case.132 Mindus aligns with Vidmar and argues that Kuríc concerns the ‘freezing’ of residence
status. On the basis of this case, residence rights would continue after Brexit, but not so far that
124 ILPA 2016, par. 15. 125 Vidmar 2013, p. 283;
Austin-Greenall & Lipinska 2017, p. 13-14.
126 Kuríc case, par. 15-18. 127 Kuríc case, par. 350. 128 Kuríc case, par. 351. 129 Kuríc case, par. 352. 130 Schrauwen 2017, p. 6. 131 Vidmar 2013, p. 283;
Schrauwen 2017, p. 6
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EU law would continue to apply after Brexit.133 In contrast, Schrauwen concludes that the
reasoning in the Kuríc case is ‘territorially restricted’ and does not concern EU free movement rights.134 This seems a restrictive interpretation of the Kuríc case. Given the fact that judicial
decisions are a source of public international law135 and it is the ECtHR which interprets the
ECHR,136 it cannot be concluded that the principles underlying the decision solely apply to the
case beforehand.137 Therefore, Schrauwen seems to undermine the role of case law of the
ECtHR as precedents.
Alegre raised the possibility of violations of Article 14 ECHR in conjunction with Article 8 ECHR, as illustrated in the Genovese v. Malta case.138
The Genovese v Malta case concerned a British mother and a Maltese father who were not married. In 1996, the couple gave birth to a son. Because the father did not (yet) recognised the child, the child was not entitled to Maltese citizenship. Later, the father was judicially declared the biological father of the child, but still the child could not obtain Maltese citizenship based on domestic nationality law.139 While there was no violation of Article 8 ECHR as such,
the ECtHR did link citizenship to the social identity of a person falling under the scope of Article 8 ECHR, which is the key element in this judgment.140 The ECtHR found a violation of
Article 8 ECHR in conjunction with Article 14 ECHR, the prohibition of discrimination. The ‘arbitrary refusal of citizenship on the ground of birth out of wedlock’ was considered to be an unjustified interference.141 This case illustrates how citizenship falls under the scope of Article
8 ECHR, and that the arbitrary refusal of citizenship can lead to a violation of Article 8 in conjunction with Article 14 ECHR. Here, it is necessary to underline the complementary character of Article 14 ECHR. The prohibition against discrimination will only supplement other ECHR rights as Article 8 ECHR in the Genovese v Malta case.142
133 Mindus, p. 69. 134 Schrauwen 2017, p. 6.
135 Article 38 of the Statute of the International Court of Justice;
Hynning 1956, p. 127.
136 Article 32(1) ECHR.
137 Lupu & Voeten 2011, p. 420;
Karner v Austria case, par. 26;
House of Lords 2016, p. 30.
138 Alegre 2016, under summary, par. 6-8;
Genovese v. Malta case, paras. 1-51.
139 Genovese v. Malta case, paras. 7-15;
European Union Agency for Fundamental Rights & Council of Europe, p. 71
140 Alegre 2016, par. 4;
Genovese v. Malta case, par. 33.
141 European Union Agency for Fundamental Rights & Council of Europe, p. 71;
Genovese v. Malta case, paras. 43-49.
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In light of Brexit, Alegre has emphasized that UK citizenship law allows citizens, including children, to obtain dual nationality. Here, situations of discrimination between children can occur. Some British children acquire EU citizenship by virtue of their citizenship of another EU Member State through their parents, while other children do not have this possibility. ‘[T]o retain EU citizenship following Brexit’, Alegre stated, is subjected to grounds of people’s ‘national or social origin, association with a national minority, property, birth or other status’ which could amount to a violation of Article 8 ECHR in conjunction with Article 14 ECHR.143 In addition, Speaight also argued that the withdrawal of EU citizenship rights
could also interfere with Article 8 in conjunction with Article 14 ECHR. Here, Speaight sketched the following situation:
‘That is the situation of EU or EEA144 citizens, or dependants, who on Brexit day will have been in the UK for more than five years. Under EU law, currently embodied in regulations here, a day before Brexit they will have a permanent right of residence in this country. The day after Brexit, if the EEA immigration regulations are no longer in force, on the fact of things they will have no right to remain. On the other hand, a third-country person who has come to this third-country and been here for five years has the possibility of applying for indefinite leave to remain145.’146
It follows that EU citizens, including children, can apply for permanent residence before Brexit, but the day after they cannot apply for a residence permit in contrast to non-EU citizens. This could also constitute to a violation of Article 8 ECHR in conjunction with Article 14 ECHR.
Whether an interference of Article 8 ECHR and Article 8 in conjunction with Article 14 ECHR will actually lead to a violation, still depends on fulfilment of the criteria in Article 8 paragraph 2 ECHR.147 It follows that an interference with Article 8 ECHR will not lead to a
Ehlers, p. 92;
Barnard & Speaight 2016 oral, under Q33.
143 House of Lords 2016, p. 32;
Alegre 2016, under summary, par. 7.
144 EEA refers to the European Economic Area established under the Schengen Agreement in 1990. While the
UK is not a party to the Schengen Agreement, the rules form part of EU law and therefore bind the UK. The UK has incorporated the EEA rules in its EEA immigration regulations as referred to in the text. See for more information: S. Peers, ‘The UK and the Schengen System’, 3 December 2015 http://ukandeu.ac.uk/the-uk-and-the-schengen-system/ (last accessed: 12 December 2018).
145 i.e. permanent residence.
146 Barnard & Speaight 2016 oral, under Q 32. 147 Kuríc case, par. 361.
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violation as long as the interference is prescribed by law, serves a legitimate aim and is necessary in a democratic society. Those requirements are of a cumulative nature. Whether this is the case needs to be assessed on a case-by-case basis as it is dependent on all circumstances of the case beforehand.148
4.2 Article 1 Additional Protocol 1 to the ECHR
Besides Article 8 ECHR, claims have been made that A1P1 could possibly be violated when EU citizenship rights are withdrawn.149 A1P1 provides for the right to peaceful enjoyment of
property.150 The provision both mentions ‘possessions’ and ‘property’. According to Vaughan
Lowe, ‘property’ ‘includes the right to use, to transfer and to exclude others from the covered possessions’ whereas ‘possessions’ cover ‘movable and immovable things, including intangibles such as intellectual property, contracts, judgments, licences, and public benefits.’151
Vaughan Lowe and Speaight add that A1P1 includes a ‘legitimate expectation’ of property.152
This view is confirmed by the ECtHR in the Saghinadze v. Georgia case. The ECtHR reasoned that claims on future property rights are protected under A1P1 as long as the claimant ‘has at least a reasonable and “legitimate expectation” of obtaining effective enjoyment of a property right’.153 The ECtHR in the Kopecky v Slovakia case has clarified that in order for an
expectation to be legitimate, it must have ‘sufficient basis in national law’.154
As we have seen in the Zambrano and Chavez-Vilchez cases, EU citizenship entails the access to benefits. Non-EU citizen parents can be eligible for benefits in a host Member State in order for their children to enjoy their EU citizenship rights. But can welfare benefits be considered protected rights of possession or property under A1P1? It follows from the Stec v. United Kingdom case that social welfare benefits fall under the protection of A1P1.155
148 Nieuwenhuis, Den Heijer & Hins, p. 111-112. 149 House of Lords 2016, p. 29;
Austin-Greenall & Lipinska 2017, p. 13.
150 UK Human Rights Blog. 151 House of Lords 2016, p. 29;
Vaughan Lowe Supplementary under Q2.
152 House of Lords 2016, p. 29;
Vaughan Lowe, par. 11; Speaight 2016, p. 2.
153 Saghinadze v. Georgia case, par. 103;
ECHR Online, par. 1.
154 Kopecky v. Slovakia case, par. 52;
ECHR Online, par. 1.
155 Stec v United Kingdom case, par. 53 and 66;
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Whether the withdrawal of children’s EU citizenship rights constitute a violation of A1P1 will still be dependent on whether the deprivation is ‘in the public interest and subject to the conditions provided for by law and the general principles of international law’.156 The
fulfilment of these requirements need to be assessed on a case-by-case basis as it is dependent on all circumstances of the case beforehand.
5. Withdrawing children’s EU citizenship rights: possible violations of the UNCRC As seen in Chapter 4, it is likely that the withdrawal of children’s EU citizenship rights will interfere with Article 8 ECHR, Article 8 in conjunction with Article 14 ECHR and A1P1. The rights under the ECHR not only apply to children but also adults. What about rights that specifically concern children i.e., rights under the UNCRC? Could the withdrawal of children’s EU citizenship rights lead to possible violations of the UNCRC? As there is an absence of academic writings on this subject, possible situations as a result of Brexit will be sketched and the assessment will be made in abstracto. In contrast to academics, NGO’s have underlined that also the UNCRC is important with regard to the withdrawal of children’s EU citizenship rights.157
The UNCRC has been influential for the advancement of children’s rights in the EU and although ratification is not open to international organizations, such as the EU, every EU Member State has concluded the ratification process. Therefore, the EU must take into account the rights and obligations deriving from the UNCRC.158 In addition, some UNCRC provisions
are incorporated in the Charter of Fundamental Rights of the European Union (2012) (Charter).159 The UK is considered to be a ‘dualist system’, which means international treaties
need to be incorporated in domestic law in order to have ‘legal effect within the domestic legal order’.160 The Children’s Alliance for England has raised that the UK has not ‘fully’
implemented the UNCRC in domestic legislation. Reason for the UN Committee on the Rights of the Child (Committee) to express ‘serious concerns […] making more than 150
156 Paragraph 1 of A1P1.
157 See e.g. Together 2017, NICCY & OCO 2017.
158 European Union Agency for Fundamental Rights & Council of Europe, p. 26-27. 159 See e.g. Article 24 Charter of Fundamental Rights of the European Union (2012);
Together 2017, p. 12;
European Union Agency for Fundamental Rights & Council of Europe, p. 27.
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recommendations’.161 Therefore, EU law and membership to the EU is important for the UK
with regard to the development and enforcement of children’s rights.162
There are some core principles deriving from the UNCRC that are relevant in light of Brexit: the principle of non-discrimination (Article 2 UNCRC163), the best interests of the child
(Article 3 UNCRC) and the child’s right to be heard and express his or her views (Article 12 UNCRC).164 In addition, there are other children’s rights deriving from the UNCRC that could
be violated when their EU citizenship is withdrawn, such as Article 9 UNCRC, the right not to be separated from parents in conjunction with Article 10 UNCRC, the right to family reunification and Article 26 UNCRC, the right to benefit from social security. The content of these articles will be set out, possible situations arising after Brexit will be set out and an assessment will be made in abstracto.
5.1 Non-discrimination
Article 2 UNCRC confers a prohibition of discrimination and is recognized as a ‘general principle’.165 Article 2 UNCRC defines discrimination as including ‘any kind, irrespective of
the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status’.166 Discrimination can for example occur on the basis of children’s place of residence
and on the ground of being a non-national of a State, as immigrant children and children of migrant workers.167 It must be noted here that Article 2 UNCRC does not prohibit ‘affirmative
action, the legitimate differentiation in treatment of individual children’.168 The illegitimate
discrimination is prohibited under Article 2 UNCRC and ‘must apply to all children in the State’, residing legally or illegally.169
The first paragraph of Article 2 UNCRC requires States to ‘respect and ensure’ the rights deriving from the UNCRC ‘without discrimination of any kind’.170 To ‘respect and
161 CRAE 2017, p. 2;
Committee on the Rights of the Child 2016, p. 1-25.
162 Individual cases can also be brought before the UN Committee on the Rights of the Child under the Third
Protocol of the UNCRC. However, only 11 EU Member States have ratified this protocol, excluding the UK, see Mole 2017, p. 530.
163 See for the full text of the relevant articles in this chapter Appendix 4. 164 A&L Goodbody 2017, p. 27. 165 UNICEF, p. 19. 166 Article 2(1) UNCRC. 167 UNICEF, p. 28. 168 UNICEF, p. 19. 169 UNICEF, p. 26. 170 Article 2(1) UNCRC.
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ensure’ includes the State’s obligation to ‘refrain from any action that would infringe upon the rights of children’ and to ‘protect children from any threat of human rights violations or to take steps that enable children to realize their rights.’171
With regard to Brexit, discrimination in legislation is brought into prominence. As seen in Chapter 4, Speaight has raised the possibility of discrimination between EU citizens and non-EU citizens after Brexit in relation to applying for permanent residence. Whereas non-non-EU citizen children will qualify for indefinite leave to remain based on other UK legislation, EU citizen children will have no leave to remain based on UK legislation. This could constitute to a violation of Article 2 UNCRC, as discrimination on the grounds of national origin. Subsidiary, the UK would therefore not be able to refrain from any actions that infringe upon the rights of children as a consequence of Brexit which also could constitute to a violation of Article 2 UNCRC. By way of comparison with the prohibition of discrimination as laid down in Article 14 ECHR, Article 2 UNRCR is not supplementary to other UNCRC rights.
5.2 Best interest of the child
As illustrated in Chapter 2 by the Chavez-Vilchez case, the best interest of the child as a primary consideration is applicable in the context of children’s EU citizenship rights. Article 3 UNCRC confers the obligation to take, in all actions concerning children, the best interest of the child as a primary consideration.172 The best interest of the child as primary consideration applies both
in the public and private sphere.173
According to the Committee, the best interest of the child consideration is ought to be implemented in ‘the workings of parliaments and government, nationally and locally, including, in particular, in relation to budgeting and allocation of resources at all levels’.174
Article 3 UNCRC is intertwined with Article 4 UNCRC, which sees upon the implementation of the UNCRC in domestic law. The combination of the both articles require governments to make a ‘consistent analysis of the potential and actual impact on children of government actions’175 and confers an obligation upon the State.176
171 Todres & Higinbotham, p. 63. 172 Article 3 UNCRC. 173 Article 3(1) UNCRC; UNICEF, p. 42. 174 UNICEF, p. 42. 175 UNICEF, p. 70. 176 UNICEF, p. 42.
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The best interest of the child is not only a primary consideration where actions affect one child but also where government actions affect all children, although the measure might not be designed for children. As a result, Article 3 UNCRC applies in all sorts of actions, including decision-making.177 As the Committee underlined: ‘The adoption of any law or
regulation as well as collective agreements – such as bilateral or multilateral trade or peace treaties which affect children – should be governed by the best interests of the child’.178 This
would also apply to a withdrawal agreement.
As a result of EU citizenship, a lot of families are connected with multiple EU Member States by means of ‘nationality or residence’. Disputes may arise within international families and cases of parental child abduction occur.179 In this context, the Brussels IIa Regulations
regulates ‘jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility’ and provides more protection than the Hague Convention on the Civil Aspects of International Child Abduction (1980).180 As a result of a
cold Brexit, children enjoy less protection in case of abduction as the UK can only rely on the Hague Convention. Besides this, it would not be even clear ‘if EU law will permit the Hague Convention(s) to continue to apply between the UK and EU Member States unless a common position on this is also adopted by the EU’.181 When withdrawing from the EU and withdrawing
children’s EU citizenship rights, the UK should take the best interests of the child as a primary consideration and make a consistent analysis of all the actual and potential impact of Brexit on children. At this moment, it is unclear whether this has been done. It could be argued that the best interest of the child is not taken as primary consideration when withdrawing from the EU, including withdrawing from the Brussels IIa regulations without any alternative and no certainty whether the Hague Conventions will continue to apply between the EU and the UK.
5.3 The child’s right to be heard and express his or her views.
The first paragraph of Article 12 UNCRC provides for the right of the child to freely express his or her views on matters that affect him or her, and those views ‘given due weight in accordance with the age and maturity of the child’.182 In addition, the second paragraph of
Article 12, provides a child’s right ‘to be heard in any judicial and administrative proceedings
177 UNICEF, p. 45-46.
178 General Comment No. 14, p. 9. 179 Together 2017, p. 13-14. 180 Mole 2017, p. 532. 181 Mole 2017, p. 532. 182 Article 12(1) UNCRC.
