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Expats lose bid to scrap 15-year rule for EU referendum

A high court bid to force the British government to change the law that bars long-term expats from voting in the crucial EU referendum has been thrown out by judges.

Expats lose bid to scrap 15-year rule for EU referendum
Photo: D Smith/Flickr

Lawyers acting for the two British expats who launched the legal battle have confirmed they will seek leave to appeal directly to the UK's Supreme Court following their failure to convince two judges to overturn the rule.

Some two million British expats living in the EU, including tens of thousands in France and Spain, are barred from voting in the crucial June 23rd referendum because they have lived outside Britain for longer than the 15-year cut off point.

Despite them facing the prospect of becoming “resident aliens” if the British public votes to quit the EU, judges at the High Court in London refused to overturn the 15-year limit in time for the referendum.

The ruling left British expats across Europe furious.

“I'm absolutely appalled. This referendum affects us more than anyone else. To think that we could be forced out of Europe by people voting in Britain who have no idea about how we live and depend on the EU is beyond belief,” said France-based Brian Cave.

“This reflects the attitude in the UK that if you go abroad then you have no longer any interest in the UK. I am deprived of the vote and it's absolutely ridiculous.”

 

Italy-based Harry Schindler one of the two expats who launched the High Court challenge was equally upset by the ruling.

“I’m disappointed but more than that, I’m saddened that after all these years there are still people fighting for the right to vote in democratic Britain,” he told The Local.

“I am now appealing to David Cameron to ask him, through parliament, for an amendment to be put to the referendum bill that would allow us to vote. I will also take to the Supreme Court – the last stage. The battle is not over.”

Lennox Napier, a campaigner living in Mojacar, southern Spain told The Local of his frustration with the decision. 

“We ex-pats feel that we have no voice, no representation, no champion. There are a huge number of us: patient, wise and well-travelled, waiting and able to do our part if only we were called. But there's no one there,” he said. 

The High Court heard arguments that the ’15 year rule’ acted as a  penalty against British citizens for having exercised their free movement rights.  The rule prevented them from participating in a democratic process, the result of which might bring to an end the very EU law rights on which they rely and base their working and private lives every day.

However Lord Justice Lloyd Jones and Mr. Justice Blake stated in the ruling that they accepted the Government’s claims that there were:  “…significant practical difficulties about adopting especially for this referendum a new electoral register which includes non-resident British citizens whose last residence the United Kingdom was more than 15 years ago.” 

They continued: “In our view, Parliament could legitimately take the view that electors who satisfy the test of closeness of connection set by the 15 year rule form an appropriate group to vote on the question whether the United Kingdom should remain a member of the European Union or leave the European Union.” 

Following the judgment Richard Stein, the lawyer from Leigh Day representing the claimants, said: “We are obviously disappointed that the High Court has denied us the opportunity to challenge the decision by the Government to exclude British citizens from the EU referendum.

“We now intend to take the legal battle to the Supreme Court, the highest Court in the country, so that all British citizens living elsewhere in the EU can be part of the democratic process to vote in this referendum which will have a very real impact on their lives.

“We believe that there is precedent for fast track legislation being put through Parliament in a matter of days in response to court judgment, so  there would be no need for the referendum to be delayed if the Supreme Court rules in our favour.    

“Since this is a vote in a referendum rather than in an election there is no need to link the votes of Britons in Europe to any particular constituency in the UK.   Possession of a British passport should be enough.”

Speaking after the judgement  the judgment, Belgian-based expat Jacquelyn MacLennan said: “The Government made a manifesto commitment to enfranchise all British citizens, no matter how long they have been abroad.

“They said they thought that “choosing 15 years, as opposed to 14 or 16 years, is inherently like sticking a dart in a dartboard” and that “if British citizens maintain British citizenship that brings with it rights, obligations and a connection with this country, and that that should endure.

“We just want the Government to keep its promises.”

Some Brits however appear to support the idea that expats should not get the vote in the referendum.

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BREXIT

Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Brexit really does mean that Britons are no longer EU citizens. Claudia Delpero looks at whether there's any other way they can keep their rights.

Is new court ruling the end for Britons fighting to remain EU citizens?

The Court of Justice of the European Union confirmed on Thursday that Britons lost EU citizenship when the UK left the EU, on 1st February 2020. 

It is the first time the EU’s top court has rules on the matter, after a number of legal cases challenged this specific Brexit outcome. The decision also sets a precedent should other countries decide to leave the bloc in the future. 

What has the EU Court decided?

The Court of Justice decided on a case brought by a British woman living in France.

Before Brexit, she could vote and stand as a candidate in her town of residence, Thoux. But after the UK withdrawal from the EU, she was removed from the electoral roll and excluded from the municipal elections that took place in March 2020, during the transition period.  

As the mayor refused her appeal to restore the registration, she took the case to the regional court in Auch, which agreed to request an interpretation of the rules to the EU top court. 

Julien Fouchet, the barrister supporting her and several other cases on the EU citizenship of British nationals, argued that the loss of EU citizenship and voting rights was disproportionate. It would also be contrary to the EU Charter of Fundamental Rights, given that the woman also lost her voting rights in the UK, having lived abroad for more than 15 years.

Alice Bouillez, who has lived in France since 1984 and is married to a French national, could have applied for French citizenship, but did not do so because she said “this was not necessary” before Brexit and, as a former UK official, she had taken an oath of allegiance to the Queen.

On Thursday the Court of Justice announced the decision about her case. The court ruled that the “possession of the nationality of a member state is an essential condition for a person to be able to acquire and retain the status of citizen of the Union and to benefit fully from the rights attaching to that status.”

The court therefore confirmed that British nationals automatically lost their EU citizenship as a result of Brexit and, as a consequence, Britons also lost their voting and electoral rights in municipal elections in the EU (unless the country where they live set different rules). 

What is EU citizenship?

EU citizenship was introduced by the Treaty of Maastricht of 1992, when borders were opening and the bloc was integrating economically after the end of the Cold War. 

Under the treaty, every person holding the nationality of an EU member state is a citizen of the Union. EU citizenship is additional and does not replace nationality, the treaty specifies. But this creates the first form of a transnational citizenship that grants rights across borders.

EU citizens have the right to access each other’s territory, job market and services under the principle of non-discrimination. If they are economically active, they have the right to reside in other EU states and be joined by family members, access healthcare at the same conditions of nationals (for emergency treatment also when travelling temporarily), obtain social security benefits and see their professional qualifications recognised.

Beyond free movement, at the core of EU citizenship there are also political rights, such as participating in the European Parliament election, voting and standing as candidates in municipal elections when living in other EU countries, receiving consular protection from other EU states outside the EU, and taking part in European Citizens’ Initiatives asking to the EU to legislate on certain matters. 

Which EU citizenship rights have Britons lost with Brexit? 

For British citizens who were living in the EU before Brexit, the Withdrawal Agreement protects some of these rights. Britons covered by deal have their residence, access to work and education, healthcare, social security and qualifications secured, but only in the country where they were living before Brexit.

But the right to free movement in other EU states, consular protection in third countries, and the political rights attached to EU citizenship were lost, the Court confirmed. 

For British citizens in the UK, the trade and cooperation agreement has preserved some social security rights and, in theory, the possibility to have professional qualifications recognized when moving to an EU country. These provisions however lack details and may take a long time before they work in practice. 

As the “European Union” no longer features on British passports, the possibility to access EU lanes at airports to skip passport control queues has also vanished. 

“The loss of those treasured rights has been clear to those of us living in the EU from the early days of Brexit. But for Brits in the UK, the realities of life outside the EU, and the consequences of Brexit, are only just dawning. Long queues at the borders, roaming charges, obstacles to working abroad, etc. are the new reality,” said Sue Wilson, Chair of the group Remain in Spain. 

While she said the court’s decision was “no real surprise,” she argued that “this is not the Brexit the public were promised, or that the majority voted for.”

Can British citizens get some of these rights back?

Julien Fouchet was disappointed at the Court decision and promised to continue the legal fight, bringing the case at the European Court of Human Rights (which is not an EU institution). 

Other two cases on the matter of EU citizenship for British nationals are still pending at the Court of Justice of the EU. One of them aims to determine whether EU citizenship is a “fundamental status” that cannot be removed but Thursday’s decision could have already provided the answer.

Another option to reconsider some of the rights is the renegotiation of EU-UK trade agreement, when it will be reviewed in 2025. 

Meanwhile, the EU is revising the rules for non-EU citizens living in EU countries on a long-term basis, making it easier to move across borders. 

Applying for citizenship is so far the only option to regain voting rights, although not all EU countries allow dual nationality. 

Sue Wilson, who has long campaigned for the UK to stay in the EU, said: “There is only one way to restore the loss of our rights, and that’s to rejoin the single market, rejoin the customs union, and eventually, rejoin the European Union… Until that day, we will continue to be second class citizens whose rights have been diminished for the sake of an ideology.”

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