British Citizens Fight For EU Rights In The Netherlands The timing and usefulness of this week's court action may be questioned, but how has Brexit come to this?

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A group of British citizens, living in the Netherlands, has launched a court case, in an attempt to preserve their rights as EU citizens, post-Brexit. They feel that some of these rights will be lost, after Brexit, and hope that their case will be heard by the European Court of Justice (ECJ).

Don’t get me wrong. I support the initiative, and I am full of admiration for groups, such as British in Europe. They have been indispensable during these troubled times, and made each one of us realize that we were not alone. Their help and perseverance are invaluable, to all who are affected by the UK’s decision to leave the EU.


Courting with justice

I spent most of my time, immediately after the Brexit vote, having nightmares about British citizens queueing for hours at immigration offices, and professional qualifications ceasing to be recognised. Maybe I see things differently now, being protected, thanks to the acquisition of a French passport, together with the fact that both sides are in agreement over the continued mutual recognition of diploma’s, at least for those already in possession of such diploma’s. But I don’t feel safe, yet, as verbal agreements can be breached. And what will happen if there is no Brexit deal, by March 2019? All this means that, putting my French passport to one side, I remain very much a part of the 1,3 million British citizens who, in one way or another, are trapped in the absurdity of Brexit, in the EU-27 member states. 

This being said, I do think that the timing of the court case can be questioned. It is probably a reflection of the sheer state of desperation and worry, some British citizens find themselves in.

The immediate objective of the plaintiffs, is to get their case heard by the ECJ. The fact that the decision of the Amsterdam court will be announced in three weeks time, does not make one confident over the timescale we are talking about. If successfully brought to the ECJ, one can only speculate on how much time the ECJ will need, in comparison to the Dutch court, to decide on the issue.

Let us assume, for argument’s sake, that time is not an issue. The British citizens will be asking the ECJ to defend their fundamental rights, as specified by the EU constitution. In particular, the rights for British citizens, living in the EU-27 member states, to move freely between states. Since these rights have been totally excluded from the first phase of the Brexit negotiations, it remains unclear whether British citizens, living in a EU-27 member state, will have the right to move to another state, after Brexit. This is a major concern for many citizens, whose livelihoods depend on being able to move from one state to another, for varying amounts of time.

The present EU citizens’ rights, applicable to British expats, have not yet been taken away, or modified. Freedom of movement, for British expats, is the most salient example of a fundamental EU right that may be revoked, after Brexit. But the fact that it has not yet been revoked, suggests that the timing of the court case, triggered this week, may be premature.

We cannot make parallels with the case that Gina Miller brought before the British courts, in December 2016. She was contesting a fait-accompli – Theresa May was going to trigger Article 50, without the approval of the UK parliament. The present case is, in my view, quite different. British citizens, living in an EU country, outside the UK, are asking a referral to the ECJ, in order to uphold a series of rights that haven’t yet been revoked. Whilst it is true that citizens’ rights – in particular, freedom of movement – should not be retrospectively revoked, nothing suggests – at the present time, at least – that they will be.

In any case, even if the ECJ upholds the British citizens’ demands, what will it do, and how will it enact its decisions? Will the ECJ have the power to stop the Brexit negotiations, until all EU citizens’ rights are guaranteed? This certainly seems to be a complicated and unfeasible option, because it would only delay the Brexit negotiations, and significantly decrease the chances of a deal being reached, before March 2019.

The questionable timing, and usefulness, of the court case, must not make us forget its root cause, moral justification, and courage of those who made it happen. The court case is solely the unfortunate result of a comprehensive failure, of both the UK and EU, to ratify once and for all, EU citizens’ rights, post-Brexit. Both parties have no excuse, as citizens’ rights – together with the Brexit bill, and Northern Ireland border – formed the core substance of phase I of the Brexit negotiations. The EU is nothing without its citizens – a fact that Theresa May, and particularly Jean-Claude Junker, seem to have forgotten.


Playing games

If the official documents are anything to go by, it does seem that the UK wanted its citizens, living in EU-27 member states, to maintain freedom of movement. On 28th September, 2017, the positions of the EU and UK on this topic, were as follows,

  • EU: UK nationals in scope of withdrawal agreement only have protected rights in the state(s) in which they have residence rights on exit day…
  • UK: UK nationals in scope who move within EU-27 after the specified date should keep all existing rights…

It is the EU who refused free movement of British citizens, and not the UK.

Stranger still, is that the divergent views disappeared, in the much publicised final agreement, published last December. The question of continuing free movement, within the EU-27, was relegated to the section “other matters“, where it was, “raised by the UK,” but fell, “outside the scope of the EU mandate for the first phase of the negotiations.” Do note that, once again, the notion of free movement was raised by the UK, and not the EU.

Guy Verhofstadt has always maintained that EU citizens’ rights would be maintained. I really don’t know what sort of game the EU is playing, but I do know that Brussels is playing with the fundamental freedoms, that it is supposed to protect. In so doing, the EU is threatening to shatter a dream, and turn the dream into a nightmare.

Short of downgrading the status of British EU citizens, living on the Continent, the EU is putting an inherent part of their status – freedom of movement – on hold. This, with the sole objective of moving the negotiations onto much more important things, such as lucrative trade deals.

Why this apparent ambiguity? I do have a theory, that is more sinister than mere love of money, and is based on the official document, cited above. The UK wished that the free movement of its citizens, who live and work the EU-27, at the time of Brexit, remains unchanged. The EU clearly refused, in retaliation to the UK’s wishes to limit EU immigration. It is a tit for tat response, that clearly ignores the rights of British citizens, already living and working in EU-27 member states.


High hopes in The Low Countries

In asking a Dutch court to give EU citizenship precedence over economics, the handful of British citizens, residing in the Netherlands, are maintaining high hopes of a favourable outcome – referral to the ECJ. The court action is also supposing impartiality and objectivity on behalf of a judge, residing in a country that, arguably, is the EU-27 member state having the most to lose from a bad Brexit deal, or no deal at all.

I sincerely hope that I am wrong in my judgement, but my lack of faith in the current situation, is understandable, and must be understood. I grew up and went to school, in the most European of English environments – South Kensington, where I attended a French school. I obtained a University degree in the East End of London, before spending 17 years in France. By chance, on visiting Amsterdam, I fell in love with the Netherlands, some 18 years ago. I am married to a (former) non-EU citizen, who was allowed to come to the Netherlands, without a problem.

I am sure that many of you have a similar background. Together, we represent the very people who Nigel Farage and his band of Brexiteers, cannot stand, or cannot understand.

Although I fully support the court case, I believe so much in our democracies, that I am convinced that they will have the better of any skewed negotiation. It is up to the parliaments of the member states, together with the European Parliament, to decide whether any Brexit deal is a good one, for all EU citizens, including British EU citizens. It is these parliamentarians who should be pursued, and not the courts. I have had my post, focusing on free movement, professionally translated, and will send a copy to every single Dutch MEP. We should all try to convince them, about the importance of freedom of movement. The courts of justice should only be summoned in the event of a deal that curtails our rights. If such a day comes, we will be more than justified to summon the courts, and we will all walk the streets of Amsterdam, and Luxemburg – together.