Do UK citizens retain their European rights after the UK leaves the EU? This is important for those residing and/or doing business in the EU, and there is very little clarity about it at the moment. Elected politicians and their negotiators publish documents summarising the current state of negotiations, but the UK minister has said that “Nothing is settled until everything is settled”, and has already negotiated away the right of free movement for current residents, replacing it with a kind of special residence and work permit for their existing place of residence. The situation is confused, and a mess.
Both as Chairman of the Commercial Anglo-Dutch Society, and as a private individual, I joined a case in The Netherlands initiated by Jolyon Maugham QC from the UK, and others, where we requested a Dutch judge to refer our case to the European Court of Justice in Luxembourg. They will in any case be the eventual arbiter of the question, which is “how are my existing rights as a UK citizen residing and/or owning a business in Europe affected by the withdrawal of the UK from the EU?”.
This is, of course, a critical question for my own future, and also affects between 1 and 2 million other UK citizens living in the EU.
The Dutch government argued that my rights terminate with Brexit, and are replaced by a new agreement that is not yet made. We argued that our rights are protected under Article 20 of the Lisbon Treaty, and under Article 8 of the European Declaration of Human Rights. We have acquired these rights, and they cannot be removed arbitrarily Article 70 para 1b of the Vienna Convention. and various cases argued under Article 20 at the ECJ. Both the UK and NL are party to these treaties. In a circular logic, the Dutch state argued that my case is premature, since they have not yet altered my rights, and that it has no foundation, since I am not threatened by the Dutch state. However their opening statement is that they are going to terminate my rights next Easter! That logic does not work with my customers, my family, CADS, or me. We need certainty, and time to plan our personal and business futures. They also argued that we should be taking action against the UK government, not the Dutch state. However the UK government is not the party that threatens my rights. Under the curious logic of Brexit, it is the Dutch government who will take action against me.
Judge Bakels asked some penetrating questions to both sides, about the alleged loss of rights, whether they only arise from EU membership, the semantics of the word ‘additional’, and how and when the rights will cease,; he paid close attention to the evidence and the arguments presented. After both cases were presented, he advised he will rule on the case in 3 weeks (on Feb 7th). We await the outcome!