Leiden Law Blog

Welcome to Brexit – the vote where no-one wins

Posted on by Daniel William Carter in Public Law
Welcome to Brexit – the vote where no-one wins Photo: Paul Lloyd

On 24th May 2016 the UK Supreme Court made a final decision on the case of British expatriates’ right to vote in the UK referendum on 23rd June. In R (Schindler) v Chancellor of the Dutchy of Lancaster [2016] UKSC 2016/0105 the Supreme Court rejected the application to appeal the Court of Appeal case [2016] EWCA Civ 469, in which it was held that the ban on British nationals voting after 15 years outside the UK was not contrary to British or EU law.

Lady Hale, Deputy President of the Supreme Court, had sympathy with the expats’ predicament, but stated that the Court would not overturn the lower court’s decision that EU law did not apply. That judgment referred to Article 50 TFEU, which states that the decision to leave the Union must be made “in accordance with the Member State’s own constitutional requirements”, which includes the 15-year rule. In fact, the case of Preston [2013] QB 687 had already laid down the precedent that  the 15-year rule fell outside the scope of EU law in relation to general elections, as the Treaties on voting rights for Union Citizens only refers to European and municipal elections. The Court of Justice of the European Union recently took a similar approach to prisoner voting rights. In Case C-650/13 Delvigne ECLI:EU:C:2015:648 it was held that whilst a rule prohibiting prisoners from voting in European elections could potentially breach the concept of universal suffrage as contained in Article 39(2) of the Charter of Fundamental Rights of the European Uniongeneral elections firmly fall outside the ambit of EU law. A final argument made by the appellants was that the 15 year rule had the potential to restrict their free movement rights. As per the case-law of the Court of Justice, a national measure will breach the free movement provisions if it discourages the exercise of such a right (for example see Case C-370/90 Singh ECLI:EU:C:1992:296). The UK Court summarily dismissed this argument, not accepting the view that the rule could cause British expatriates to “pick up sticks” and return home after 15 years.

Clearly the decision raises sensitive questions over disenfranchising people from voting in an referendum that could have huge implications for their lives. However, there is no reason why this argument could not similarly be applied to Europeans residing in the UK. Why should Europeans that have resided in the UK for 5, 10, or even 20 years be denied a vote, especially when considering that the options for a potential post-Brexit immigration policy will likely result in other Europeans losing more than their British counterparts?

A key claim of the Leave Campaign is that Brexit could allow the UK to reduce annual net immigration from its current figure of  330.000 to under 100.000. However, this can surely only be achieved through the application of a strict points-based system, similar to that which currently apply to non-EU nationals, to all immigrants, including Europeans. Arguably it would need to be much more restrictive than the current system, given that immigration from outside the EU is by itself well over 100.000 per year (in fact they are almost double this). Currently, non-Europeans are subject to high and sometimes arbitrary income requirements, with adverse decisions being difficult and expensive to challenge. Non-Europeans wishing to reside in the UK initially must do so on the basis of a Tier 2 visa. This requires the individual to have a job which pays at least £20.800, as well as up to £1,000 in annual healthcare surcharge fees and employer sponsorship. However, migrants wishing to settle long-term need ‘indefinite leave to remain’, which requires them to earn more than £35.000 per year.

Europeans currently in the UK might be reassured by the Leave Campaign’s recent claim that in case of Brexit “there will be no change for EU Citizens already lawfully resident in the UK. These EU citizens will automatically be granted indefinite leave to remain in the UK and will be treated no less favourably than they are at present”. This means that (at least during the post-Brexit negotiations) EU migrants will likely not be subject to the restrictive immigrations policies applicable to non-Europeans – which in turn would imply comparable treatment for UK nationals living in the rest of Europe. Ironically though, in the short-term this would most likely increase immigration into the UK dramatically, as Europeans rush to take advantage of the free movement rules whilst they still apply!

Even more concerning for the Brexit lobby is that even if the UK votes to leave the EU, this does not necessarily mean that the UK will not be subject to the EU rules on free movement. This all depends on whether the UK, after leaving the European Union, becomes a member of the European Economic Area (EEA). Under this agreement the UK would retain access to the internal market, but would lose its ability to influence EU legislation (formally at least). Most controversially, however, it would still be subject to the free movement rules that are currently in place. Consequently, the cruel irony for the Brexiteers is that EEA membership means that the UK would in principle be subject to secondary EU legislation on social benefits (in particular Regulation 492/2011Directive 2004/38; and Regulation 883/2004). This would result in a much more generous system of welfare access for European migrants than would be provided for by the ‘Safeguard Mechanism’ negotiated by David Cameron, which restricts welfare access to all European migrants for up to 4 years.

Joining the EEA is unpopular with many Brexiteers, who advocate leaving the internal market entirely and returning to a WTO-based trade relationship with the EU. Notwithstanding the fact that even the WTO Chief thinks this is a terrible idea, pro-Europe MPs (of which there is an overwhelming majority in the Parliament) have suggested that they will not let the UK leave the EU without retaining access to the internal market, regardless of the outcome of the referendum.

Consequently, all parties face an uncertain future in respect to a post-Brexit migration policy. Both British and EU migrants are likely to be frustrated at not being able to participate in a decision which has the potential to seriously affect their lives. However, it could be the case that the consequences of a Brexit vote are not as catastrophic as initially feared, and instead it is those who vote to leave who quickly find themselves thoroughly disappointed to discover that Brexit does not result in the low-immigration utopia that they are repeatedly being promised.

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