The question of whether British nationals will retain their EU citizenship rights after Brexit is being taken to the European Court of Justice (‘ECJ’) in Luxembourg. This follows a landmark ruling in a case brought by five British nationals in the Netherlands who campaigned for ECJ intervention.
Currently, the Treaty on the Functioning of the EU (‘TFEU’) provides that a citizen of a Member State is by default also a citizen of the EU. Further, article 20 TFEU confers the right for EU citizens to live, work and travel freely between the EU Member States – also known as free movement rights. There are no provisions, however, detailing what happens to a citizen’s rights once their Member State has withdrawn from the Union.
In such cases of uncertainty, a national court may refer a point of EU law to the ECJ to be interpreted and clarified by way of a mechanism called a ‘preliminary ruling’ and to ensure that the law is interpreted and applied correctly throughout all Member States. It is therefore of no surprise that pro-Brexit supporters despise the inherent powers of the ECJ to overrule decisions on citizen’s rights made by the British courts.
Prior to the Dutch ruling, Steven Huyton, one of the challengers in the case said, “just because the UK voted to leave, it shouldn’t be able to force citizens to give up their rights”. However, George Dictus – a lawyer for the Dutch State – believes that once the Brexit deal has been finalised, the EU treaties would no longer apply to British citizens and new rights would be conferred under a separate bilateral agreement between Britain and the EU.
The important thing to note is that if the ECJ does make a ruling to guarantee Britons EU citizenship rights, it will be a victory for over 1 million Britons who reside in the EU, but may also weaken the UK’s position in the on-going Brexit negotiations.
A hearing remains to be scheduled by the ECJ.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2018