A group of UK nationals living in the Netherlands have gone to court to challenge the right of the British government and the European commission to negotiate away their rights as EU citizens in the Brexit talks.
Five UK nationals along with the Commercial Anglo Dutch Society and the lobby group Brexpats – Hear Our Voice are the claimants named in the action. Many of the group’s members have lived outside of the UK for more than 15 years and therefore were not allowed to vote in the referendum meaning many feel disenfranchised by a process that will have a direct impact on their lives. They are seeking a referral to the European Court of Justice (‘ECJ’) and have argued that the rights of UK citizens are independent of that country’s EU membership. The outcome of the test case on the treatment of UK nationals by the EU and UK could potentially have far-reaching ramifications on Brexit negotiations.
Article 20 of the Lisbon Treaty gives EU citizenship rights to nationals of member states but the treaty is silent on the issue of what happens to those rights if a member state leaves the union. The group is relying on the lack of specific provisions to argue in their action against the Dutch government that after Brexit takes effect on March 29, 2019, anyone who had UK citizenship before that date should legally retain EU rights including freedom of movement and the right of residence. Further, based on previous ECJ decisions have held that EU citizenship rights have an independent reality not just as an adjunct to national citizenship rights, they claim that the Lisbon Treaty gives significant rights to EU nationals, which rights are not tied to the political fate of their home country.
A favourable result for the group could highlight inequities between UK and EU law and the way in which UK and EU citizens are treated on either side of the Channel after Brexit.
