In May the Court of Appeal rejected a challenge to the exclusion of expatriates that have lived outside of the UK for over 15 years from the EU referendum franchise. Turan Hursit discusses this judgment, which she suggests was an adamant declaration by the courts that the EU has no say in whether, and the way in which, the UK leaves the EU.

There are between 1.3 and two million Britons who currently live in other EU countries. The legal status of these individuals following a potential Brexit remains unclear, depending wholly on the outcome of two years of negotiations started by invocation of Article 50 of the Lisbon Treaty, the EU ‘exit’ clause.

It is surprising, then, given the potential implications of any Brexit for expatriates, that the issue of expat voting rights has been almost entirely absent from the Brexit debate. Harry Shindler, a 94-year-old British war veteran and Jacquelyn MacLennan, a partner in a Brussels law firm, raised the issue when they brought a case, first in the High Court, then the Court of Appeal, contesting the existing restrictions on expat votes.

The Political Parties, Elections and Referendums Act 2000 currently provides that any UK citizen who takes up residence abroad can apply to be placed on the overseas electors’ list. This right ceases once an individual has been abroad for 15 years or more. The time limit has been controversial and the legal cut-off point has been changed three times from five years in 1985 to 20 years in 1989, and then again to 15 years in 2000. Last year’s Queen’s speech contained a promise to abolish the threshold altogether in a Votes for Life Bill, but this has yet to be introduced. In Shindler and MacLennan v Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs, the claimants sought to challenge the 15-year limit contained in the 2000 Act and their consequent exclusion from the EU referendum franchise.

The case

The claimants contested the appropriateness of the 15-year threshold with three arguments. The first concerned section 2 of the EU Referendum Act 2015, which applies the voting restrictions contained in the 2000 Act to the EU referendum. The claimants argued that this section fell within the scope of EU law and was therefore affected by EU provisions on free movement and proportionality. This first argument had to be successfully mounted for the claimants to succeed in their second and third arguments, which concerned issues of EU law. The second argument was that section 2 restricted their rights of free movement. Third, they claimed that this restriction was not objectively justified as a ‘proportionate’ means of achieving a legitimate objective: the government could have achieved its aim using means that did not restrict the claimants’ voting rights to the same extent.

The Court of Appeal unanimously rejected the arguments. First, it found that section 2 of the 2015 Act does not fall within the scope of EU law. Article 50(1) of the Lisbon Treaty clearly confers upon member states the right to withdraw from the EU in a manner of their choosing and in accordance with their own constitutional rules. Withdrawal is thus a matter solely for national law. In any case, section 2 does not breach EU rules on free movement. The effect of section 2 on expats of more than 15 years is too uncertain, indirect, or insignificant to amount to a restriction, and it is unrealistic to suppose that not having a vote would genuinely deter such individuals from moving abroad or convince them to return permanently. There being no interference with the right to free movement, the Court of Appeal ruled that the proportionality of interference (the claimants’ third argument) is not an issue.

Commentary

This was above all an adamant declaration by the courts that the EU has no say in whether, and the way in which, the UK leaves the EU. A very literal reading of Article 50 would support this. The provision clearly states that member states may decide to withdraw ‘in accordance with [their] own constitutional requirements’. What was not addressed by the court is whether the UK’s own constitutional requirements can be said to include the EU constitutional rules to which the UK gave prominence via the European Communities Act (ECA) 1972. The closest the court came to this was when Lord Justice Elias stated that EU law could not take precedence over UK law on the issue of withdrawal as EU law was afforded primacy only by virtue of an act of parliament: the ECA. The construction of Article 50 of the Lisbon Treaty itself was said to recognise the political reality that EU law can have no part to play in member states’ decisions on whether to leave or remain. The court could have chosen to refer the issue to the European Court of Justice, but almost certainly would not have had a response in time for the referendum.

The High Court had held that while the manner in which the UK exercises its sovereign competence is capable of engaging EU law (disagreeing with the Court of Appeal on the claimants’ first argument), the more relevant issue was whether there was any basis on which it could be maintained that the conditions set for the referendum franchise are capable of interfering with any fundamental rights. Leaving aside for a moment the court’s controversial choice to characterise free movement as a ‘fundamental right’ despite its absence from the EU Charter, it is fair to say that the High Court was far more direct in answering the claimants’ question of whether they were entitled a say in a potentially life-changing referendum, as opposed to the broader academic question of who should have a say in UK withdrawal.

The second interesting point about the case is the Court of Appeal’s assessment of whether losing the right to vote would deter expats from leaving or force them to return to the UK. The High Court had noted the low numbers of expats registered as overseas voters – said to be only around 30,000 of a total 5 million citizens living abroad (the figures do not distinguish between those living in the EU and the rest of the world). Recent government statistics provide that 106,000 expats were registered to vote in the 2015 general election. The numbers may have further increased since then, not least because of interest in the referendum, and initiatives by the Electoral Commission to make it easier to register online.

The future for expats

Where from here for expats? In the short term, it is now certain that expats of more than 15 years will not have a say in the upcoming referendum. The Supreme Court refused permission for appeal, re-emphasising that expat votes are an issue to be decided by the UK and the UK alone. If the 15-year rule is to be lifted, it will have to be done by parliament; but the government has given no indication of when the Votes for Life Bill might be introduced, or the reasons for its delay.

In the longer term, things are a lot less clear. In the event of Brexit, the UK may continue its membership of the European Economic Area alongside countries such as Iceland and Norway or negotiate a similar settlement allowing continuation of the free movement of persons. On the opposite end of the spectrum is a scenario where expats are expelled from their respective countries of residence. In between lies a situation in which expats have to apply for visas and may be required to make financial contributions to services such as healthcare. As with many things in the referendum debate, what Brexit will mean in practice is very unclear.

About the author

Turan Hursit is a Research Volunteer at the Constitution Unit.