A group of British nationals living in the Netherlands have made a legal bid in a Dutch court to retain their EU citizenship after Brexit, arguing that their rights cannot be removed under European law.
Five UK nationals along with the Commercial Anglo Dutch Society and the lobby group Brexpats – Hear Our Voice are the named claimants. They are being assisted by Jolyon Maugham, the QC behind a series of recent Brexit legal challenges in Britain.
They have asked the court to refer their case to the European court of justice (ECJ), arguing that their rights as EU citizens are enshrined in article 20 of the Lisbon treaty.
However, their case was strongly opposed by the Dutch government and municipality of Amsterdam in a hearing in the district court in the Dutch capital on Wednesday.
“The claim is evidently without merit and totally unfounded,” said Erik Pijnacker, counsel for the state opponents.
He told the judge there was “no dispute” with anyone, and that the claimants were in procedural error as they knew they should have first tried the case in the UK, and were only using the Dutch courts to get a referral to the ECJ.
Maugham said that if the Dutch judge referred the case to the Luxembourg court, it would have implications for all Britons. “The answer the court of justice gives will be an answer that applies to UK passport holders wherever they live,” he said. “I am profoundly concerned about what the loss of EU citizenship means for the million or so UK citizens who live and work in the EU.
“I am also profoundly concerned for the 64-odd million people living in the United Kingdom who, but for this litigation, will lose the ability to exercise EU citizenship rights in the future.”
In the three-hour hearing, Pijnacker also attacked one of the claimant organisations, Brexpats, saying it could not “legally be deemed to be representative of a potentially large population” of British people in the Netherlands, estimated to be 45,000.
The British citizens bringing the case against the Dutch government argue that anyone who has UK citizenship before 29 March 2019 should legally retain EU rights including freedom of movement and the right of residence afterwards.
The group’s lawyer, Christiaan Alberdingk Thijm, argued that the Lisbon treaty gave them 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”.
He urged the judge to refer the case to the ECJ to make a definitive interpretation of what this “additional” citizenship meant.
It was arguably a birthright or an acquired right for all British citizens who were born up to and including Brexit day, 29 March 2019, he said. It was also arguable that the question of citizenship was independent from the withdrawal agreement currently being negotiated with the UK.
These questions needed to be answered by the European court, Alberdingk Thijm argued.
“Are they acquired rights or are the negotiable? Can the rights of citizens be the subject of a withdrawal agreement? There are no precedents, opinions are divided and there is only one body that can give a definite answer and that’s the European court of justice,” he said.
The judge will issue his judgment next month.
Thijm said the British in Europe had taken part in the European dream in good faith, using their right to freedom of movement acquired under EU law. This could not now be summarily removed from them, he told the court.
“They have found work here, started a family here, assumed care of sick children, built up a pension here – exactly what the European dream is about. The right to pursue that European dream cannot be taken by a member state,” he said.
Britons in the Netherlands
Molly Williams, 24, unemployed
Having lived in Germany, Malta and Belgium with her parents, Chris and Debra Williams, she says she wants to win the case so other young people in Britain can have the freedom she had to work and study in Europe. She studied hospitality in Europe and the idea of working in another country is “natural” to her. That right has been removed from Britons under the deal Theresa May struck in December.
Quick GuideMain points of agreement in the Brexit deal
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EU citizens
- EU citizens in the UK and UK citizens in the rest of the EU have the right to stay. Rights of their children and those of partners in existing “durable relationships” are also guaranteed.
- UK courts will preside over enforcing rights over EU citizens in Britain but can refer unclear cases to the European court of justice for eight years after withdrawal.
Irish border
- The agreement promises to ensure there will be no hard border and to uphold the Belfast agreement.
- It makes clear the whole of the UK, including Northern Ireland, will be leaving the customs union.
- It leaves unclear how an open border will be achieved but says in the absence of a later agreement, the UK will ensure “full alignment” with the rules of the customs union and single market that uphold the Good Friday agreement.
- However, the concession secured by the DUP is that no new regulatory barriers will be allowed between Northern Ireland and the rest of the UK without the permission of Stormont in the interest of upholding the Good Friday agreement.
Money
- There is no figure on how much the UK is expected to pay but the document sets out how the bill will be calculated – expected to be between £35bn and £39bn.
- The UK agrees to continue to pay into the EU budget as normal in 2019 and 2020.
- It also agrees to pay its liabilities such as pension contributions.
Other issues
- The two sides agreed there would be need for cooperation on nuclear regulation and police and security issues.
- There was an agreement to ensure continued availability of products on the market before withdrawal and to minimise disruption for businesses and consumers.
Chris Williams, 44, IT specialist in the defence industry
Regularly on the move, Williams most recently worked for Nato in the Netherlands but has also worked for defence interests in Germany and is searching for his next contract. “I am looking in Belgium, Germany, Switzerland and the UK,” he says. “I want to be able to continue to look in any other country. With Brexit I can’t.”
Lesley Zijlstra-Eyre, goldsmith
Originally from the Peak District, she has lived in the Netherlands for the past 15 years with her Dutch husband. If May’s offer to EU citizens in the UK is reciprocated by the Dutch “we will be third-class citizens”, she says. Her main concern is freedom of movement. She fears that if her husband, who has offices in Belgium and Madrid, has to move for work, she will not be able to join him.
Nick Nugent, 46, software salesman
The Liverpudlian has lived in Amsterdam for 10 years and was keen to join the case. “It will be interesting if we get to the ECJ. If their view is positive, Brexit won’t matter. We will have what we want,” he says. “For my job, freedom of movement is really important. I need to be able to travel to other countries for meetings and now I can do that easily.”
