A group of UK nationals living in the Netherlands are going to court to challenge the right of the British government and the European commission to negotiate away their rights as EU citizens in the Brexit talks.
The claimants will argue that the rights of UK citizens are independent of the country’s EU membership, according to legal documents seen by the Guardian.
The case will be heard in Amsterdam on Wednesday, where a referral to the European court of justice will be sought, in what could be a major test of the treatment of UK nationals by the EU and UK in the Brexit talks, with potentially huge ramifications.
While the ECJ could find that only citizens who have exploited their right to free movement to live in the EU are being unlawfully treated, everyone in the UK could potentially benefit.
Five UK nationals along with the Commercial Anglo Dutch Society (CADS) 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.
The group argues in their action against the Dutch government that after Brexit on 29 March 2019, anyone who had UK citizenship before that date should legally retain EU rights including freedom of movement and the right of residence.
They say the EU’s treaties are silent on what happens to citizens of a member state that leaves the union. But they claim the Lisbon treaty gives “real weight” to the rights of EU nationals, and that these are not coupled to the political fate of their home country.
The group’s lawyer, Christiaan Alberdingk Thijm, said he expected the court to take six weeks at most to decide whether to refer to the ECJ. “We are in a rush,” he said. “I’m convinced that the ECJ should assess these questions. Theresa May famously said ‘Brexit means Brexit’ but no one knows what that means.”
One of the claimants, Stephen Huyton, a director of a US firm headquartered in the Netherlands who has lived in the country for 23 years, said he was concerned about the right of his children, who have British passports and are studying in the UK, to return to the Netherlands to live and work.
“There are a number of points to this and one is emotional,” he said. “We have lived outside the UK for more than 15 years and so we were not allowed to vote in the referendum. That is the rule. So a lot of us really feel disenfranchised by the whole process. It was a raw nerve, and it remains a raw nerve.
“I did not make a lifestyle choice by moving here, I moved here for work. And when I came out I came out on a set of terms and conditions. The whole issue of the UK being able to leave the EU [through article 50 of the Lisbon treaty] wasn’t in the treaties at that point.
“In UK common law, we generally have a rule that we don’t apply law retrospectively, and in some ways that is what they are doing.”
Maugham, who is financially backing the legal action, said he was hopeful the case could have profound implications for UK citizens who want to retain their rights.
“Article 20 gives EU citizenship rights to nationals of member states but it is silent on the issue of what happens to those rights if a member state ceases to be a member state,” he said. “Previous ECJ cases have suggested that EU citizenship rights have an independent reality, not just as an adjunct to national citizenship rights.
“The question is: would anyone who is a citizen of the UK on 29 March 2019 benefit from EU citizenship rights after that date? Of course, we cannot know what the [ECJ] might say. But I can see it taking the opportunity to give meaning and resonance to those rights.”
Maugham conceded that a favourable ruling by the ECJ could throw up an “awkward asymmetry” between the way UK and EU citizens are treated on either side of the Channel.
“The question whether UK citizens can assert EU citizenship rights in the EU after Brexit is a question of EU law,” he said. “But the question whether non-UK EU citizens can assert EU citizenship rights in the UK after Brexit is a question of UK law.
“It may turn out that there is an awkward asymmetry: UK citizens enjoying generous EU rights but EU citizens suffering meagre UK rights.”
Debra Williams, 55, founder of Brexpats, one of the claimants, who has spent a decade moving between Germany, the Netherlands and Belgium for her husband’s work, said: “EU citizenship means the world to me.
“It’s not that I’m not proud to be Welsh and British, I am but I’m also proud to be European. I’m doing this for the kids, and the grandkids, they should have what we have, to be able to travel and work freely in Europe. Otherwise it’s going to be work permits and visa, that will be a tragedy for them.”