Julien Fouchet from Cornille, Pouyanne, Fouchet avocats in Bordeaux and Paris, told Connexion he wants to challenge the new French ordonnance (order) on no-deal Brexit rights, on the grounds that it considers that Britons after a no-deal Brexit would lose EU citizenship.
He said if he acts rapidly and succeeds in obtaining an ‘accelerated’ procedure, then it may still be possible to get a ruling from the European Court of Justice clarifying the rights of Britons abroad in the EU before Brexit happens.
The new French ordonnance seeks to protect some key rights for Britons in France, but it assumes loss of EU citizenship after Brexit and says Britons would have to apply for third-country (non-EU citizen) residency cards.
It says, among other matters, that those who had acquired permanent residency rights as EU citizens after five years' stable and legal residency would apply for a long-term resident’s card lasting 10 years (before it has to be renewed), but not a 'permanent residency' card.
This French rule on the cards complies with no-deal guidance by the European Commission which asked states to recognise that five years of residency before Brexit should give the right to long-term resident status under the rules for non-EU citizens.
However Mr Fouchet said the publication of the ordonnance last week provides an opportunity to take a legal case to France's top administrative court the Conseil d'Etat, which could lead to clarifications being sought from the European Court of Justice (ECJ), which has the power to rule on such matters of EU law.
He said – since Brexit is unprecedented – the continuity of an individual's EU citizenship after their country leaves the EU has never been ruled on definitively, nor has the issue of whether or not the permanent residency acquired by an EU citizen after five years under EU law should continue after their country leaves.
He said another question to be clarified by the ECJ could be whether, if EU citizenship is lost, some ‘intermediate’ status between EU citizen and third-country citizen would remain.
At best, if the ECJ ruled that EU citizenship rights are an individual acquired right, this could benefit all British citizens everywhere, Mr Fouchet said.
“If there are British people in France who would like to take part, we must do it now as there is just two months to contest the ordonnance, furthermore once it is ratified by Parliament [which must happen within six months of it being published] no one will be able to challenge it.
“It’s now or never for a case before the French administrative judges so as to get the best possible protection in the case of no-deal, after that I couldn’t do anything and so there would be no referral to the ECJ.”
He said that the legal costs for such a case would not be high and could be covered by crowdfunding (see here for the funding page).
Those interested can email firstname.lastname@example.org and we will pass your details to Mr Fouchet.
In the meantime Mr Fouchet said he is still hoping for an appeal ruling by the ECJ this month on whether or not his previous ‘Shindler’ case is admissible. This case seeks to challenge the basis of the Brexit negotiations on grounds that the Brexit referendum was not properly run because many people affected – Britons abroad for more than 15 years – were excluded from it (see previous article here).
In another case, British barrister Jolyon Maugham was involved in court action in the Netherlands which sought a referral to the ECJ about whether or not EU citizenship is an acquired right. However this case was rejected last June by an appeal court in Amsterdam as being too premature; the court said the issue should wait until the outcome of the negotiations was known.
Mr Maugham told Connexion he is still waiting to see if there will be a Brexit or not before trying again.
A European Citizens’ Initiative was also launched on the EU citizenship issue last year, but is struggling to obtain enough signatures, and it would not be possible for more to be collected after the UK left the EU. Due to a clash of British and French rules, Britons who live in France cannot take part in it.
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