Five EU judges to hear case challenging Brexit vote

A French lawyer’s case challenging the basis of the Brexit negotiations is to be heard in front of five judges on July 5 in what he has described as a last-ditch chance to maintain Britons’ EU citizenship.

Julien Fouchet from Bordeaux is bringing the case on behalf of 13 British expats living in the EU, four of whom are in France.

The EU’s General Court has increased the number of judges for the hearing from the usual panel of three to five, a sign that the case is being viewed as significant.

The hearing is based on the idea that the Brexit negotiations are illegal under EU law because they follow a referendum that was discriminatory as it excluded long-term British expats living in other EU countries.

By excluding long-term expats the UK was, in effect, punishing them for exercising their right of free movement, breaking EU principles of equal treatment of citizens.

After 15 years living out of the UK British expats lose the right to vote in UK national elections and this was also the case for the June 2016 referendum on EU membership.

Mr Fouchet argues that as the referendum was discriminatory, the EU should not be in talks with the UK. He hopes that a decision cancelling the negotiations could come before the UK leaves and believes it would halt the process unless the UK holds a new vote including long-term expats in the EU.

He said: “There’s a huge risk for British firms and firms that want to invest in the UK, for citizens and their freedom of movement and to run businesses… it’s a catastrophe. I hope the judges take account of all this because the negotiations are not just a preparatory matter, as the other side claims, but the trigger of an irreversible process.”

Other cases challenging aspects of Brexit have hit legal obstacles and been delayed. ‘People’s Vote’ campaigners have also been pres­sing for what would in effect be another referendum, with most aiming at a choice including ‘no Brexit’ (see photo box above).

However the UK government says there will not be another vote, nor is the final vote on the exit deal promised to British MPs expected to include a choice to reject the deal and remain.

Little progress has been announced in the negotiations for several months, raising the threat of a ‘no deal’ exit once again as arose last autumn when there were doubts as to whether ‘sufficient progress’ had been made to move on with the talks.

A crucial EU summit is to be held on June 28-29, this will be the last before October by which point everything is meant to be concluded if the UK is not to leave without a deal on March 29, 2019.

Mr Fouchet said: “Our case is the last legal hope, apart from political hopes, of Britons remaining EU citizens. Once the UK has left it will be too late.”

Judges at London’s High Court rejected the so-called ‘Article 50 Challenge’ [which sought to prove that Article 50 was not triggered properly with a clear decision to leave by MPs] as “hopeless” (an appeal has been lodged) and in the Amsterdam case [seeking a ruling that Britons’ EU citizenship may survive Brexit] appeal judges have said a lower court’s decision to refer a question to the European Court of Justice had merit but the issue must wait until the outcome of the negotiations is known. A third case in the Scottish courts, seeking to ask the ECJ if Britain may cancel Brexit unilaterally, was rejected as ‘hypothetical’ as the UK had said it would leave with or without a deal.

Mr Fouchet, whose clients include expat votes campaigner Harry Shindler, 96, from Italy, added: “There is no deal as yet and, if there is no deal, there’s an enormous risk that all Britons will lose their EU citizenship and so this case must continue and win as it will be the only way of preserving Britons’ rights. If there is no solution for the Irish border we are heading for ‘no deal’.”

British barrister Jolyon Maugham, who backed the Amsterdam case, said the most likely avenue now will probably be to reintroduce a case in the Amsterdam District Court once the UK and EU confirm they have a final deal on citizens’ rights.