Changes in citizens' rights after Brexit

Brexit is over – and some of its legal consequences for British citizens have emerged over recent days. 

Regarding the struggle of some to hold on to their EU rights, the Court of Justice of the European Union (CJEU) issued a short and brutal press release last month, headed ‘Definitive dismissal of the actions brought by British citizens challenging the loss of their rights as EU citizens as a result of Brexit’.

Two separate groups of Brits – one representing some Brits in the UK, C-499/21 P (Silver and Others v Council), and the other representing some Brits settled in the EU, C-501/21 P (Shindler and Others v Council) – had been trying by all legal methods to hang on to their EU rights after Brexit. Their principal line of attack was against the Withdrawal Agreement signed between the UK and the EU, the legal document laying out the exit deal.

Though separate cases, they were brought together into the same press release (together with a third individual case, C-502/21 P (Price v Council), whose outcome was the same, but available only in French).

The British citizens resident outside the UK claimed, among other things, that they had not been able to vote in the decision which removed their rights (at any rate, those who had been outside the UK for more than 15 years were not able to vote). Both groups claimed that rights which they had held for years could not just be withdrawn like that. For instance, the EU residents lost the right to vote in local and European elections - several complainants in that group were former local councillors.

The CJEU was having none of it. Both groups had already been to the General Court, which had held that they did not have standing and that their claim was inadmissible. Much of the argument centred around technicalities over those two issues of standing and admissibility, rather than the substance. The CJEU supported the General Court in rejecting the claims.

But to settle the matter for once and for all, and to make clear how wrong in law they felt the two groups to be, the court gave the same definitive wording in both principal judgements for the basis of their decision – and, as I say, the press release is headed ‘definitive dismissal’.

The court said that it was not the Withdrawal Agreement which had caused UK citizens to lose their EU rights. Rather, ‘the loss of the status of citizen of the European Union, and consequently the loss of the rights attached to that status, is an automatic consequence of the sole sovereign decision taken by the United Kingdom to withdraw from the European Union, by virtue of Article 50(1) TEU’. In other words, speak to the UK government about your loss of rights, don’t come and litigate it here.

Of course, that is not quite the end of the story. The lawyer representing the EU-resident group has said that his last hope is an appeal to the European Court of Human Rights because of British citizens being excluded from local election voting.

There is another strand of the story which has ended more happily. One of the group of EU residents before the CJEU was Harry Shindler, who died earlier this year in Italy, aged 101. He was a Second World War veteran who fought in the Battle of Anzio and took part in the liberation of Rome.

He fought a two-decade campaign to secure the rights of British citizens living overseas to vote in UK elections. This became successful last year with the passage of the Elections Act 2022, which gives certain UK citizens living abroad the right to vote for life, regardless of how long they have been outside the UK.

The House of Commons Library published a briefing paper about the Elections Act 2022 just a few days ago.

It contains interesting numbers. Until 2015, the number of overseas voters registered to vote (under the 15 year rule) had never risen above 35,000. At the General Election of 2017, there were a record 285,000 registered overseas voters, estimated to be about 20% of eligible expats under the 15-year limit. Now the government estimates that the changes in the new Act, ending the 15-year limit, will mean around 3.5 million British nationals living overseas will be eligible to register to vote.

The structure is not yet in place. Detailed secondary legislation is required to implement aspects of the new provisions. It is expected to be brought forward this year, with newly eligible overseas voters able to vote in 2024.

So Harry Shindler and others may have lost their EU rights forever, but a change has nevertheless been brought about that, in the future, when votes take place, will ensure a much wider franchise, with potentially significant power.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society

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