With less than 20 days to go until Brexit day, a group of UK citizens are preparing a legal action to challenge whether the government can remove their EU citizenship when the UK officially leaves the European Union on 31 January, The London Economic has learnt.

Joshua Silver – a Professor of Physics at the University of Oxford and one of the claimants – intends to bring a case to the European Court of Justice (CJEU) in the coming weeks to question whether Boris Johnson can use the basis of the 2016 EU Referendum to legally remove his status as an EU Citizens as part of delivering Brexit.

Asked to comment, the European Commission responded: “We take note of the intention to begin legal proceedings”.

Freedom of Movement

Freedom of Movement will end for EU citizens (including citizens of Switzerland, Norway, Iceland and Liechtenstein), and their family members in the UK, and for British citizens living across the EU when the transition period ends on December 31st 2020.

The end of free movement means that the residence status for EU citizens and their family members has to be protected under UK immigration law.

The UK Government set up the EU Settlement Scheme which is in line with the Withdrawal Agreement and is designed for this purpose

An ardent campaigner for Democracy and Human Rights, Prof Silver said: “When the result of the referendum was announced, it set me thinking: what happens to our EU citizenship now? So, I asked several lawyers whether anyone can actually remove our rights as EU citizens. The uniform answer was: not with the present state of EU law”.

He added: “I am sure that I am not alone in viewing EU citizenship as of the utmost importance to all 513 million EU citizens, including – of course – some 66 million UK-EU citizens”.

Class action

Prof Silver is also seeking clarification on whether he can bring the case as a “class action” to represent over 79,000 people who have so far registered their desire to retain EU citizenship on a specially designed website – set up by Professor Silver and a friend – which he had initially hoped would be hosted on the European Parliament website, but this proved too difficult to achieve.

Speaking about the site, Professor Silver said: “Since the matter of EU Citizenship is now such an important question, and quite possibly the most important question being brought before the CJEU since its inception, the intention will be to bring a case not individually, but as a “class action”, giving every registrant the opportunity to add their name.”

According to Article 20 of the Treaty of Lisbon, EU citizenship is additional and separate to national citizenship. Presently, there are no provisions for removing this citizenship and its associated rights from individuals, regardless of whether their nation leaves the EU.

Electoral Commission report

At the heart of this case is the Electoral Commission report of July 2018 which, after an investigation into the spending by Vote Leave, BeLeave and Veterans for Britain, concluded that electoral fraud had taken place to a “criminal standard of proof” during the referendum, which many have argued invalidates the referendum result and thus any action taken from it.

“In thinking about this situation, the following question comes to mind: Can any Government of an EU State really use a tainted vote like the 2016 leave vote to leave the EU?”, he said.

Professor Silver has also suggested that Theresa May’s Letter of Notification as outlined in Article 50 is invalid, referencing the recent court case Wilson v Prime Minister in which many have inferred from the Government’s case that former Prime Minister Theresa May was aware of the findings of the subsequent findings Electoral Commission by the 23rd September 2016 at the latest.

“Some view UK nationality as the gateway to EU citizenship”

Professor Catherine Barnard, a European law expert at Cambridge University has said that “some view UK nationality as the gateway to EU citizenship – and that if we are not in the EU, UK citizens do not get those additional rights. But in the context of Brexit this is a really big question – and no-one knows the answer.”

Plaid Cymru Brexit Spokesman Jonathan Edwards has backed Professor Silver’s bid. Asked about EU Citizenship, Mr Edwards commented: “Removing someone’s citizenship is one of the most serious political acts a government can undertake.”

The MP for Dinefwr added: “The complexity of this argument only goes to show that Brexit will not be a simple process. It will be an extremely complicated and protracted process.”

Prof Silver also argues that the 4.9 million British citizens living overseas who were denied a vote in the EU referendum may have a case under current human rights legislation. “We believe it was both profoundly undemocratic, and also very wrong to artificially and deliberately restrict the franchise in the way that was done by the 2015 UK Referendum Act.”

Renowned international human rights lawyer, Juliya Arbisman has told Prof Silver that she considers a legal case could be brought on said disenfranchisement. She commented: “Case law [of the European Court of Human Rights] is generally friendly towards EU rights, and we would seek to convince them to apply their existing case law to say that disenfranchising expats by drawing a line between EU and non-EU territory – as opposed to UK territory and the rest of the word – was more correct, and makes eminent sense in the light of what the referendum was about.”

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