On Wednesday the British group Brexpats – Hear our Voice won a landmark ruling in a court in Amsterdam that could have a dramatic impact on the lives of all Britons living across the EU.
Five British nationals who had settled in the Netherlands asked the court in Amsterdam to refer their case to the EU Court of Justice after arguing that their rights as EU citizens could not be taken away by the Brexit referendum result.
The court agreed with their request and now a panel of judges at the CJEU (formerly ECJ) will be asked to consider whether British nationals living in the EU automatically lose their EU citizenship rights, such as freedom of movement, as a direct result of Brexit.
If the answer is no then judges will have to rule whether any limitations or conditions can be put on those rights. The exact questions that will be put to the judges will be drawn up in the next two weeks.
But while nothing has been won yet, those groups who represent the 1.2 million Brits living across the EU, including the more than 200,000 who are permanently resident in Spain, stressed the significance of Wednesday's ruling.
A spokesman for Bremain in Spain said they were delighted with the decision which had “brought relief and hope to our members”.
Campaigner Sue Wilson speaking at a rally in Manchester last October. Photo: Bremain in Spain
“The question regarding our EU citizenship rights has kept many Brits awake at night. The purpose of the case was to determine whether EU citizenship stands alone or is tied inextricably to EU membership,” explained Sue Wilson, Chair of Bremain in Spain, a group campaigning for the UK to remain in the European Union and to protect the rights of British migrants living in Spain.
“Would we automatically lose our EU citizenship rights if the UK was no longer a member state? Our hope was a referral to the ECJ, so this is a great result,” she told The Local.
The case essentially relates to Article 20 of the Lisbon agreement which stated “citizenship of the union shall be additional to and not replace national citizenship”.
So can a referendum in the UK result in that “additional” EU citizenship being stripped away? In other words just because Britain is leaving the EU can its nationals remain EU citizens and keep all the rights that come with it.
Fiona Godfrey from the pressure group British in Europe told The Local these questions “have never been tested or even looked at before”.
She said the Dutch court's ruling was a landmark decision because “it's likely to be the most important case on EU citizenship rights that the CJEU will hear.
“This gives us hope,” she said.
“It will determine what rights British citizens in the EU have going forward,” said Godfrey. “It could have huge ramifications for the entire withdrawal process.”
If the CJEU rules in favour of the five Britons settled in Amsterdam then the citizen's rights agreement struck between the EU and Theresa May's government in December last year will have to be ripped up.
British Prime Minister Theresa May is welcomed by European Commission Jean-Claude Juncker at European Commission in Brussels on December 8, 2017. Photo: AFP
May had heralded the citizen's rights agreement with the EU announced back in December as part of the first round of Brexit talks for protecting the rights of British expats, but campaign groups say it “contains more holes than a sieve”.
Significantly that agreement does not cover the continued right to freedom of movement around the EU meaning British citizens already in living in an EU country will effectively be landlocked.
Other areas such as the rights of those who work across borders and the recognition of qualifications in different EU countries were also not covered by last December's agreement, that was described as a “double disaster” by British in Europe.
With official Brexit Day set for March 29th 2019 campaigners hope the CJEU will make its ruling before Britain officially leaves the EU.
If no ruling is made by March next year then British in Europe believe December's citizenship agreement will stand for nothing.
“It is clear that the EU and UK cannot finalise and sign off the final text on citizens' rights in the withdrawal agreement until the CJEU has given its ruling and we would ask them to respect the role of the CJEU in this process,” said the group's chair Jane Golding.
Wilson concludes: “We hope a hearing and decision will be imminent, providing clarification for those living in limbo. What seems clear is that negotiations on citizens' rights cannot be signed off until the ECJ has made a ruling.”
“We have many unresolved issues and the current citizens' rights deal contains more holes than a sieve. Should the ECJ decide that leaving the EU doesn't mean losing our EU citizenship rights, that would be a game-changer. We will follow developments closely in the hope of a good night's sleep!”
All eyes are now on the judges at the Court of Justice.