Britons living in EU can take case to ECJ arguing existing rights cannot be removed after Brexit

British citizens seeking to retain their EU citizenship rights after Brexit have won a landmark legal ruling that will result in their case being heard in the European court of justice.



Five British nationals settled in the Netherlands had asked the court in Amsterdam to refer their case to the ECJ last month on the grounds that their existing rights could not be removed because of the UK referendum to leave the EU. The judge ruled on Wednesday that the case could be referred.



A spokesman for Brexpats – Hear Our Voice, which led the challenge, said: “We are grateful to the court and obviously delighted with the decision. However, this is just the first step in clarifying what Brexit could mean for our EU citizenship.



“This case has always been about seeking clarification, not only for the 46,000 Brits living in the Netherlands, but also for all the 1.2 million Brits living in other EU countries.



“As has been demonstrated in recent days, what Brexit means is still extremely unclear. You cannot play with the lives of 1.2 million people as if they are pieces on a chessboard.”

Q&A Brexit phrasebook: what are citizens' rights? Show Hide Citizens’ rights are the rights and protections offered to all EU citizens, including free movement and residence, equal treatment and a wide range of other rights under EU law regarding work, education, social security and health. They are held by some 3.5 million citizens from other member states in the UK and about 1.2 million British nationals on the continent, and are a key part of the negotiations that are taking Britain out of Europe. Read more on citizens' rights

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The lobby group, the five Britons and the Commercial Anglo Dutch Society were the named claimants in the case that was funded and supported by Jolyon Maugham, the QC behind a series of Brexit legal challenges in Britain.

The judge will issue two draft questions to be put before the ECJ within the next two weeks.

The first question asks the ECJ panel of judges to determine whether Brexit means British nationals will automatically lose their EU citizenship and all the rights that flow from that, including freedom of movement.

If the answer to that question is no, then the ECJ judges are asked to determine what, if any, conditions or limitations should apply to the maintenance of those rights once Britain leaves the EU.

Floris Bakels, a judge at Amsterdam district court, said in his ruling that the rights of minorities should not be prejudiced by a referendum under the law. “The essence of a democratic constitutional state is that the rights and interests of minorities are protected as much as possible,” he added.

Why I helped bring the Dutch case over Britons’ EU rights | Jolyon Maugham Read more

The applicants’ lawyer, Christiaan Alberdingk Thijm, had argued that the Lisbon treaty gave British nationals the right to retain EU citizenship after Brexit because it stated, in article 20, that “citizenship of the union shall be additional to and not replace national citizenship”.

Thijm said: “This is a great victory because the questions are very important questions about the interpretation of law around EU citizenship. The judge is a former supreme court judge, so the arguments about the Lisbon treaty were followed by the judge. We need brave judges who are confident to refer questions like this to the ECJ.”

Maugham said that the outcome of the case would be “profoundly important” for British people living in the EU. He said he was heartened by the attitude of the Dutch court. “The UK courts seem to find themselves cowed by the political dynamic,” he said. “I’m very pleased that judges elsewhere are able to separate out political and legal considerations.”

Barristers for the authorities had argued there could not be a referral to the ECJ because there had been no dispute in a lower court. They also argued that the Brexpats were not a legally definable group and that there could not be a referral to the ECJ simply because someone asked for one.