Britons’ EU rights bid approved
Judge rules that case for continued EU citizenship can proceed to the European Court of Justice
All Britons born before midnight on March 29, 2019 may be able to retain EU citizenship and its associated free movement rights for life, if a new legal case succeeds.
A judge in the Amsterdam District Court has allowed a case brought by a group of Britons in the Netherlands to go before the European Court of Justice. The case hinges on whether the UK’s departure from the EU means Britons will automatically lose EU citizenship, and if not, should any conditions or restrictions be imposed on maintaining it?
The plaintiffs’ barrister, Christiaan Alberdingk Thijm, told the Amsterdam Court that the Netherlands (and the other EU27 states) is wrong in assuming that Britons will lose their rights unless agreed otherwise.
British barrister Jolyon Maugham, who is backing the case, said: “If the point wasn’t arguable the judge wouldn’t have referred it – and he is a senior figure who was formerly a judge in the Dutch constitutional court.”
He added: “If it succeeds it could be the most important case in modern legal history. No other one has given such a profound extension of rights to more than 60m people.”
Mr Maugham said he initiated the case having identified the legal point about EU citizenship possibly being able to remain.
The argument relies on article 20 of the Lisbon Treaty, which says EU citizenship is ‘additional’ to member state citizenship.
He said: “Previous cases in the ECJ have talked about the fact that EU citizenship is a real thing and gives rights in addition to those that come from national citizenship.
“If it was purely a result of national citizenship, there would be no need for it.
“So, the issue is not ‘is it different and independent?’, because we know it is, but how different, how independent?
“The previous cases don’t establish that it survives the loss of national citizenship, but they certainly do enable us to ask the question, and to write the prospects off would be wrong.”
They have asked for the ECJ decision to be fast-tracked and are expecting a ruling by the summer, he said.
The group includes members of the Brexpats: Hear Our Voice (BHOV) campaign group, who have many members in France.
Mr Maugham said it should not be assumed the ECJ will shy away from a ruling that would be politically sensitive.
He said that while the court is not politically neutral, it has a proud history of moving boldly into areas which the other EU institutions might not address because of a need for agreement between member states. “If we assume that its agenda is promoting the values of the EU, those might be different from promotion of the values of individual member states,” Mr Maugham said.
He added that if the ruling goes in Britons’ favour, there will be no equivalent legal principle to also give automatic rights to EU27 citizens in the UK, however the EU27 states and the European Commission might ask to improve the citizens’ rights part of the exit deal for that group.
Mr Maugham provided initial funding for the case. Its future financing is being crowdfunded at crowdjustice.com/case/eu-citizenship
Bordeaux barrister Julien Fouchet will hear in March if his arguments that the Brexit negotiations should be called off because long-term expats had no referendum vote – but are significantly affected – will be allowed a full hearing.
He is also pursuing his case through the EU courts and said that the two different legal challenges “reinforce each other mutually”.
