Friday 12 August 2022

Britons lose chance for referral to European court on Brexit rights case

Four Britons who wanted to get the European Court of Justice to rule on whether their EU citizenship will automatically withstand Brexit have been knocked back by the Dutch courts.

The four, who are all affected personally in different ways by uncertainty about future movement and working rights, had brought a civil case in Amsterdam.

Their lawyer, Christiaan Alberdingk Thijm, had argued that information provided by the Dutch IND immigration service was ‘incorrect and misleading’ and that they were living in ‘massive uncertainty’.

But in a ruling published on Monday afternoon, the judge declared their case inadmissible, and said that they should instead present arguments to the court for foreigners’ rights.

She added, in the judgement: ‘With their claims about the information on the IND website, they want essentially to have a ruling on their residency status after Brexit. The judge finds it is unlikely that they will suffer damage as a result of the (allegedly) incorrect information.’

Last chance lost

Thijm, whose bureau Brandeis law firm had taken on the case pro bono. said that the last chance for a European Court of Justice ruling before March 29th has now gone.

‘It is very disappointing,’ he told ‘What will definitely not be possible is to have an answer to preliminary questions before the 29th March. If there were an expedited procedure at the ECJ, this would have been the last chance to get an answer.

‘I’m sure the questions will be put forward before that court at some time in the future but in the interim, the insecurity will remain for my clients.’

Various cases have tried to argue that on the basis of Europe’s own laws, citizenship sits ‘alongside’ nationality, and that after five years of living in Europe, it becomes an inalienable right. One judge ruled that the ECJ should make a judgement on this question last year, but this was overturned by the Dutch state on appeal.


Michael Pye, an author and one of the plaintiffs in the most recent attempt, said that the verdict wasn’t entirely surprising.

‘I think it was well worth trying to get the issue to the European Court of Justice,’ he said. ‘It’s a fundamental one: whether being a European has meant anything for the past 40 years. Maybe it hasn’t.’

He said that since they mounted the case, the Dutch have issued advice to say Brits will be granted a residency document in future, so he has more clarity about his own situation regarding travel and working abroad.

‘At the time that this case was brought, there was real doubt about fundamental things, and there’s still quite a lot of confusion,’ he said. ‘But the Dutch have done a characteristically sane and gentle job of telling us what to do – as have most other EU countries.’

Toxic fog

But Stephen Huyton, another plaintiff, who has a company in the Netherlands and two sons currently studying and working in the UK, said they will have to make some difficult choices to avoid being ‘landlocked’.

‘One son, who is in the UK to work, is starting the process to apply for his Dutch passport and give in his British passport to protect his right of residency here,’ he said. ‘But it’s a point of principle: should you be obliged to do so when you have been living in the country as we have for 25 years?’

He said his other son, studying at British university, may have his Erasmus placement threatened if there is a no-deal Brexit. But his family will ‘take practical measures’, and try to avoid stress. ‘You could drive yourself to an early grave if you wanted to,’ he said.

Pye added that he was grateful for the ‘generosity’ of the Dutch, compared with the ‘toxic fog pouring out of London’.

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