A group of campaigners are set to launch legal action against the government in a bid to challenge the removal of EU citizenship when the UK leaves the European Union, TLE can reveal.
With less than 20 days to go until Brexit day, they intend to bring a case to the European Court of Justice to question whether the prime minister can use the basis of the referendum to legally remove EU citizenship as part of delivering Brexit.
The European Commission responded: “We take note of the intention to begin legal proceedings”.
Professor Joshua Silver, one of the lead claimants, said: “When the result of the referendum was announced, it set me thinking: what happens to our EU citizenship now?
“So I asked several lawyers whether anyone can actually remove our rights as EU citizens. The uniform answer was: not with the present state of EU law.”
He added: “I am sure that I am not alone in viewing EU citizenship as of the utmost importance to all 513 million EU citizens, including, of course, some 66 million UK-EU citizens.”
Freedom of movement
Freedom of movement will end for EU citizens (including citizens of Switzerland, Norway, Iceland and Liechtenstein), and their family members in the UK, and for British citizens living across the EU when the transition period ends on 31 December, 2020.
The end of free movement means that the residence status for EU citizens and their family members has to be protected under UK immigration law.
The government established the EU Settlement Scheme which is in line with the Withdrawal Agreement and is designed for this purpose.
Silver is also seeking clarification on whether he can bring the case as a ‘class action’ to represent over 79,000 people who have so far registered their desire to retain EU citizenship on a specially designed website.
It was hoped the site could be hosted on the European Parliament website, but this proved too difficult to achieve.
Asked about the purpose of the site, Professor Silver said: “Since the matter of EU Citizenship is now such an important question, and quite possibly the most important question being brought before the CJEU since its inception.
“The intention will be to bring a case not individually, but as a ‘class action’, giving every registrant the opportunity to add their name.”
According to Article 20 of the Treaty of Lisbon, EU citizenship is additional and separate to national citizenship.
Presently, there are no provisions for removing this citizenship and its associated rights from individuals, regardless of whether their nation leaves the EU.
Electoral Commission report
At the heart of this case is the Electoral Commission report of July 2018 which, after an investigation into the spending by Vote Leave, BeLeave and Veterans for Britain, concluded that electoral fraud had taken place to a “criminal standard of proof” during the referendum, which many have suggested invalidates the referendum result.
“In thinking about this situation, the following question comes to mind: Can any government of an EU state really use a tainted vote like the 2016 vote to leave the EU?”, Silver said.
He also suggested that Theresa May’s Letter to notification as outlined in Article 50 is invalid, referencing the recent court case Wilson v Prime Minister in which many have inferred from the government’s case that former prime minister Theresa May was aware of the findings of the subsequent findings Electoral Commission by 23 September 2016 at the latest.
“Some view UK nationality as the gateway to EU citizenship”
Professor Catherine Barnard, a European law expert at Cambridge University, said: “Some view UK nationality as the gateway to EU citizenship – and that if we are not in the EU, UK citizens do not get those additional rights. But in the context of Brexit this is a really big question – and no-one knows the answer.”
Plaid Cymru’s Brexit spokesman Jonathan Edwards has backed Silver’s bid. Asked about EU Citizenship, Edwards commented: “Removing someone’s citizenship is one of the most serious political acts a government can undertake.”
The MP for Dinefwr added: “The complexity of this argument only goes to show that Brexit will not be a simple process. It will be an extremely complicated and protracted process.”
Silver also argues that the 4.9 million British citizens living overseas who were denied a vote in the EU referendum may have a case under current human rights legislation.
He said: “We believe it was both profoundly undemocratic, and also very wrong to artificially and deliberately restrict the franchise in the way that was done by the 2015 UK Referendum Act.”
International human rights lawyer Juliya Arbisman has told Silver that she considers a legal case could be brought on said disenfranchisement.
She said: “Case law is generally friendly towards EU rights, and we would seek to convince them to apply their existing case law to say that disenfranchising expats by drawing a line between EU and non-EU territory – as opposed to UK territory and the rest of the word – was more correct, and makes eminent sense in the light of what the referendum was about.”