The case is on behalf of a British woman who has lived in France for 36 years and is the first to reach this stage. The European Court of Justice (ECJ) in Luxembourg has not so far ruled explicitly on the point.
It is being led by French barrister Julien Fouchet, whose client is upset at losing local and EU election voting rights and has appealed against her mairie’s decision to take her off the electoral lists.
Campaign group British in Europe’s vice-chairman Jeremy Morgan QC, speaking at a webinar organised by the Franco-British Lawyers Society, said other cases related to Britons’ EU citizenship are also ongoing.
EU citizenship confers benefits such as free movement to live and work across the continent without visas and residency cards.
The Withdrawal Agreement maintains only certain – not all – rights for Britons living abroad in the EU before December 31, 2020, in the countries in which they live.
Mr Morgan said the cases are based on different arguments – one argument being that EU citizenship is a fundamental right that cannot be removed once held. If upheld, this would benefit all Britons alive before Brexit. Another argument is that those who had exercised their EU right of free movement before Brexit had a legitimate expectation of the rights on which they have relied continuing in future. This would benefit all Britons in France.
Finally, it can be argued that EU citizenship should be maintained for those for whom its loss can be shown to have a disproportionate impact on their lives.
Mr Fouchet, whom Mr Morgan called “the most admirably energetic lawyer” in this area, was heard by the court of Auch, Gers, which referred his queries to the ECJ. He later received a similar ruling after a hearing for a Scottish client in Perpignan.
Other cases challenging the effects of Brexit on British people’s rights include two others by Mr Fouchet in the General Court of the EU seeking to invalidate the Withdrawal Agreement, or parts of it, on the basis that Britons in the EU are now being treated differently from EU citizens and have lost their EU citizenship with no regard to proportionality.
Another case, from Oxford academic Joshua Silver, is based on the idea of citizenship as a fundamental right.
‘I’m not asking for anything above what I already had’
Retired British civil servant Alice Bouilliez, 61, is the claimant in the case which has been referred to the ECJ.
Though married to a Frenchman, she never took French citizenship, having sworn an oath to the Queen.
She said: “Right from the start [of the Brexit vote], I was incredibly cross because I realised what a huge amount of disruption this was going to cause.
“I’m very upset about losing my vote, especially as I can no longer vote in England [due to the 15-year rule] so have been completely disenfranchised.
“I’m not asking for anything above what I already had.”
She added: “Since preparing for this case, I’ve found 54 people in my near entourage who are very affected by it. Three or four have even gone back to the UK.”
Many were retired and felt upset at no longer having any automatic legal residency status in France, she said.
“One came in 1962 to design the Concorde’s wing. He needs freedom of movement as he has family in different countries but doesn’t have the income to take French nationality. Another came in 1990 and was one of the first Britons to be a local councillor. He has been elected three times – now he’s not able to stand.”
Many people have contacted her in tears, because the subject is “a very emotive one for everyone”. Mrs Bouilliez, from the Gers, said she will go to the ECJ to speak for herself. “My country left the EU but before that, it gave me a present and birthright: citizenship of the EU. I cannot let that go without a protest.”
- Mr Fouchet is crowdfunding for his pro-bono Brexit-related work and also has a questionnaire about EU citizenship for Britons to fill out.