EU citizenship and the sovereign right to regulate presence on state territory

Abstract

This paper seeks to examine how EU citizenship modifies the power of the state to decide on who is entitled to be present on its territory and to what extent sovereignty and territoriality are recalibrated by this supranational status. As an appendix of the principle of territorial sovereignty, states have the right to control the presence of foreigners on their territory although this right is increasingly circumscribed by international human rights and refugee law. The fact that EU citizens can be expelled from their host state is an indication that EU citizenship is not yet quite a nationality since the Member States can exercise a certain degree of control over the presence of EU citizens on their territory. EU citizenship creates an alternative model that protects EU citizens depending on the duration of their residence in the host state and situates them at the crossroads of nationality and foreignness. Recent case law concerning static citizens whose family members face expulsion suggests that EU citizenship is creating a right to be present/reside in the territory of the Union that creates a direct link between the EU citizen and the territory of the Union as the space within which EU citizenship is to be enjoyed. This link remains mediated by state nationality but is it possible to argue that it changes the relationship between the citizen, his/her state and the Union.