BiE Newsletter: 03/09/20 British in Europe takes legal action for our rights See in your browser
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BRITISH IN EUROPE TAKES LEGAL ACTION FOR OUR RIGHTS

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Dear Briton in Europe,

We hope that you and your families are well - and that you have been able to enjoy a summer break despite all the current difficulties.

As September starts, BiE hits the ground running. Our main news is that, on your behalf, we are going to court - to be more precise to The General Court of the EU. British in Europe is lucky to have a team of experienced lawyers (Jane Golding, Fiona Godfrey and Jeremy Morgan QC). For a long time they have been weighing up options for litigation and feel that now is the moment to intervene in two cases that have been brought in the General Court (see details below). Our main aim is 'to be in the room' when the legal arguments about the loss of EU citizenship rights are discussed. We want to ensure that the concerns of UK citizens in the EU, who have activated, used and relied on their EU citizenship rights, are fully explained to the court. 

This does not mean that we will let up on lobbying. Over the summer we have worked with opposition parties on amendments to the UK Immigration Bill - which aims to restrict our right to return to the UK with non-British family members. These will be presented next week in the House of Lords (see below). 

On the EU advocacy front, our first objective is to follow up on our successes in August at the specialised committee on citizens' rights on the EU/UK Joint Committee. In particular, we want to make sure that, in all member states, UK citizens can effectively combine statuses (e.g. UK citizen protected by the WA plus EU family member, or plus Third-Country National - EU Long-Term Resident). In EU member states, we aim to find out details of implementation if still unpublished or, if registration has started, to clarify issues and monitor any problems that UK citizens and their families are having in registering.

Finally, we soon hope to publish our last summary of the Guidance Note of the Withdrawal Agreement produced by Kalba Meadows. This will be about the crucial areas of pensions, healthcare and social security. See previous blog entries: I Residence Rights and Procedures; II Families and Dual Nationals.   

In the fight for citizens' rights we are at a crucial juncture. At BiE we have to keep various plates in the air: EU/UK and member state advocacy, monitoring of the implementation of the Withdrawal Agreement, information provision to our members.... and now litigation. Thanks to our lawyers' contacts we have a top-flight international law firm working for us on a no-fee basis, but a lot more will need to be done around the two cases. So, if you can, please donate to help us continue fighting for your rights.

 

With very best wishes,

 

BiE Steering Group

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British in Europe Litigation

 

A statement from our legal team:

 

British in Europe (BiE) has applied to intervene in two actions being brought in the General Court of the EU about the EU Council decision of 30 January 2020 to conclude the Withdrawal Agreement. BiE’s strategy has always been that the best way of preserving our rights was by lobbying, but that we should not hesitate to litigate to try to preserve rights which lobbying fails to secure. The most critical right denied us by the Withdrawal Agreement is EU-wide free movement.

Shindler v Council was filed with the General Court on 30 March 2020 and seeks either the annulment of the Council decision concluding the Withdrawal Agreement in its entirety (which we do not support as the result would be Brexit with no deal on citizens’ rights) or alternatively its annulment only insofar as it distinguishes automatically and generally, without any test of proportionality, between EU citizens and United Kingdom citizens from 1 February 2020. 

JU v Council was filed with the General Court on 23 April 2020 and seeks the annulment of the EU Council decision concluding the Withdrawal Agreement only insofar as it deprives UK nationals of their status as EU citizens and the rights that they have as EU citizens without their consent and without due process.  The application argues that EU citizenship is the fundamental status of EU citizens and that it is thus personal in nature. Once it vests or is acquired, the applicants argue that it does not automatically fall away following Brexit and that no person can be deprived of their EU citizenship and their rights as EU citizens arbitrarily.

These applications have been brought by a number of individuals, some of whom do not live in the EU. BiE considers it vital that the Court should hear the distinct voice of those UK citizens living in the EU who acquired, exercised and relied on their EU citizenship rights to make lives, careers and families in an EU country before Brexit. BiE has thus taken the view that we, as the coalition that has been accepted by both the EU and the UK as representing UK nationals in the EU, should be in the room when these arguments are considered. 

Applications by individuals or groups in the General Court against general measures, i.e. measures that are not addressed to specific individuals or organisations, such as the EU Council decision in this case, must satisfy the rules on “standing” – i.e. who is allowed to bring an application for the annulment of the EU act. As per normal procedure, we will need to wait until the Court decides whether the main applicants have “standing” before our applications to intervene are considered.

We will keep you all informed of what is happening as the cases progress.   However, we will not engage in any debate in social media or elsewhere on the merits of the cases themselves or our intervention. The long practical experience of the lawyers on our steering committee has taught us that such discussions are best had in court and not by giving our opponents advance insight into our thinking.

In the meantime, BiE will continue to keep an eye out for suitable cases to bring or support before the courts of the EU, whether by a direct action like these in the General Court if possible or by actions in the courts of Member States which are then referred to the CJEU for a preliminary ruling.

In making these applications BiE is represented pro bono by the Brussels office of the well-known international law firm White & Case LLP. The team there is being led by Nicholas Forwood QC, himself formerly a judge of the General Court, together with partners Genevra Forwood and Jacqueline MacLennan, and associate, Kate Keliher. BiE has been very fortunate to obtain this exceptionally high level of representation and is really grateful to White & Case and to the individual lawyers involved for agreeing to take us on and for all their hard work.

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OUR LOBBYING ON THE IMMIGRATION BILL

 

The Immigration Bill returns to the House of Lords after the summer recess and the committee stage begins on September 7th. All three of the amendments which BiE has been lobbying for have been proposed by peers. The main amendment is to ensure that UK nationals covered by the Withdrawal Agreement do not lose their existing right to take non-British family members with them if they move back to the UK. This has been proposed on a cross-party basis by the Labour and Lib Dem front benches and the Conservative Lord Flight. The other two amendments are to prevent the Government using its Henry VIII powers to pass regulations in breach of the Withdrawal Agreement, and have been proposed by the Lib Dem front bench and Lord Flight.

 

WHY THIS BILL IS SO IMPORTANT FOR US

Need to go back to the UK with your EU partner to look after your ageing Mum or Dad?  Under the UK’s immigration rules for your partner to get in as family you will need to earn at least £18,600 from the part-time work you do when you are not caring for Mum or Dad.  Oh, and your partner’s earnings will only count if s/he has been earning them in the UK for 6 months.  But how did s/he get into the UK in the first place?

BiE has been lobbying MPs to amend the Immigration Bill so that UK citizens in the EU/EEA who are covered by the Withdrawal Agreement don’t lose their EU right to return to the UK with their families without having to meet the UK’s Kafkaesque rules after March 2022.

The Committee debate will be starting next Monday, September 7th. If you know a peer, please write to them to support the amendment. Send them a copy of our briefing paper on the Immigration Bill.  

THE BRITISH IN EUROPE NEWSLETTER

 

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