Preliminary Questions on Brexit Impact on Citizens

At a Glance

A Dutch court will ask the Court of Justice of the European Union (CJEU) for guidance on the impact of Brexit on the rights of UK nationals living in the Netherlands. The CJEU’s response may affect the entire EU. The preliminary questions asked by the Dutch court are:

• Does the withdrawal of the UK from the EU lead to loss of EU citizenship for UK nationals and to the rights associated with that citizenship?
• If UK nationals in the Netherlands will retain their EU rights, will there be any conditions or limitations applicable to the maintenance of those rights?

The situation

An Amsterdam court (‘the court’) will ask the Court of Justice of the European Union (CJEU) for guidance on the rights of UK nationals living in the Netherlands.

The guidance from the CJEU would be binding if similar questions arose in other EU countries.

Background

UK nationals living in the Netherlands and UK nationals’ interest groups brought a case against the Dutch state and the municipality of Amsterdam, seeking protection of their right to stay in the Netherlands after Brexit and retain benefits currently enjoyed as EU nationals.

The court ruled as follows on February 7, 2018.

• Current negative effect of Brexit. The court stated that the threat of deportation has a real, actual and current negative effect on the rights of the applicants.
  • Nationality. Applicants must already decide whether to pursue the Dutch nationality. Dual nationality is not permitted in the Netherlands and obtaining Dutch nationality may require surrendering UK nationality, which would hamper the possibility of maintaining ties with the United Kingdom.
  • Non-EU family. Non-EU national family members must urgently investigate other options for stay.
  • Professional impact. Restrictions on travel throughout the European Union could have serious professional consequences.
• Political question. The Dutch state and the municipality of Amsterdam argued that this is a political issue and should be left to ongoing political negotiations.
  • Finding. The court found that the impact of Brexit on the applicants was sufficient to warrant judicial protection despite the ongoing political negotiations.

Preliminary questions

The court will ask the CJEU to clarify the following questions:

• Impact on rights. The court asks if UK nationals living in the Netherlands will automatically lose the rights associated with EU citizenship when the UK withdraws from the EU.
  • Acquired rights. Under a general principle of EU law, acquired rights cannot be revoked by a later decision. How long the rights have been in place and how likely these are to be respected must be considered.
  • Proportionality. Per CJEU case law, EU citizenship is an independent source of rights that the government cannot restrict unilaterally. Authorities must check whether restrictions are not disproportional to individual interests.
  • The court wants the CJEU to clarify how Brexit impacts these principles.
• Conditions or restrictions on rights. If the CJEU finds that UK nationals living in the Netherlands retain their EU citizenship rights, the court seeks to confirm whether any conditions or restrictions can be imposed on those rights after Brexit. 

Looking ahead

• Submitting the questions. The UK nationals, the interest groups, the Dutch state and the municipality of Amsterdam may comment on the draft questions until February 14, 2018. The court may amend the questions and will then formally refer these to the CJEU.
• Current case. The main proceedings in this case will be on hold until the CJEU answers the preliminary questions. It is likely to take several months before the CJEU delivers a ruling.
• EU impact. The guidance delivered by the CJEU will likely affect the position of UK nationals throughout the European Union and may also impact EU nationals residing in the United Kingdom. This will depend on the CJEU jurisdiction after Brexit, which is part of ongoing Brexit negotiations.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to beneluxinfo@fragomen.com.