A group of UK nationals living in the
Netherlands
are going 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.
The
claimants will argue that the rights of UK citizens are independent of
the country’s EU membership, according to legal documents seen by the
Guardian.
The case will be heard in Amsterdam on Wednesday, where a referral to
the European court of justice will be sought, in what could be a major
test of the treatment of UK nationals by the EU and UK in the
Brexit talks, with potentially huge ramifications.
While the ECJ could find that only citizens who have exploited their
right to free movement to live in the EU are being unlawfully treated,
everyone in the UK could potentially benefit.
Five UK nationals along with the Commercial Anglo Dutch Society
(Cads) and the lobby group Brexpats – Hear Our Voice are the named
claimants. They are being assisted by Jolyon Maugham, the QC behind a
series of recent Brexit legal challenges.
The group argue in their action against the Dutch government that
after Brexit on 29 March 2019, anyone who had UK citizenship before that
date should legally retain EU rights including freedom of movement and
the right of residence.
They say the EU’s treaties are silent on what happens to citizens of a
member state that leaves the union. But they claim the Lisbon treaty
gives “real weight” to the rights of EU nationals, and that these are
not coupled to the political fate of their home country.
The group’s lawyer, Christiaan Alberdingk Thijm, said he expected the
court to take six weeks at most to decide whether to refer the case to
the ECJ. “We are in a rush,” he said. “I’m convinced that the ECJ should
assess these questions. Theresa May famously said ‘Brexit means Brexit’
but no one knows what that means.”
One of the claimants, Stephen Huyton, a director of a US firm
headquartered in the Netherlands who has lived in the country for 23
years, said he was concerned about the right of his children, who have
British passports and are studying in the UK, to return to the
Netherlands to live and work.
“There
are a number of points to this and one is emotional,” he said. “We have
lived outside the UK for more than 15 years and so we were not allowed
to vote in the referendum. That is the rule. So a lot of us really feel
disenfranchised by the whole process. It was a raw nerve, and it remains
a raw nerve.
“I did not make a lifestyle choice by moving here, I moved here for
work. And when I came out I came out on a set of terms and conditions.
The whole issue of the UK being able to leave the EU [through article 50
of the Lisbon treaty] wasn’t in the treaties at that point.
“In UK common law, we generally have a rule that we don’t apply law
retrospectively, and in some ways that is what they are doing.”
Maugham, who is financially backing the legal action, said he was
hopeful the case could have profound implications for UK citizens who
want to retain their rights.
“Article 20 gives EU citizenship rights to nationals of member states
but it is silent on the issue of what happens to those rights if a
member state ceases to be a member state,” he said. “Previous ECJ cases
have suggested that EU citizenship rights have an independent reality,
not just as an adjunct to national citizenship rights.
“The question is: would anyone who is a citizen of the UK on 29 March
2019 benefit from EU citizenship rights after that date? Of course, we
cannot know what the [ECJ] might say. But I can see it taking the
opportunity to give meaning and resonance to those rights.”
Maugham conceded that a favourable ruling by the ECJ could throw up
an “awkward asymmetry” between the way UK and EU citizens are treated on
either side of the Channel.
“The question whether UK citizens can assert EU citizenship rights in
the EU after Brexit is a question of EU law,” he said. “But the
question whether non-UK EU citizens can assert EU citizenship rights in
the UK after Brexit is a question of UK law.
“It may turn out that there is an awkward asymmetry: UK citizens
enjoying generous EU rights but EU citizens suffering meagre UK rights.”
Debra Williams, 55, founder of Brexpats, one of the claimants, who
has spent a decade moving between Germany, the Netherlands and Belgium
for
her husband’s work, said: “EU citizenship means the world to me.
“It’s not that I’m not proud to be Welsh and British; I am, but I’m
also proud to be European. I’m doing this for the kids, and the
grandkids, they should have what we have, to be able to travel and work
freely in
Europe. Otherwise it’s going to be work permits and visa, that will be a tragedy for them.”
Read more Britons in Netherlands take fight for their EU rights to Dutch court | Politics | The Guardian
