Personal Immigration

Some British citizens were unable to vote in the EU Referendum

Section 2 of the EU Referendum Act 2015 set out entitlement to vote in the 23 June 2016 EU referendum:

(1)Those entitled to vote in the referendum are—

(a)the persons who, on the date of the referendum, would be entitled to vote as electors at a parliamentary election in any constituency,

(b)the persons who, on that date, are disqualified by reason of being peers from voting as electors at parliamentary elections but—

(i)would be entitled to vote as electors at a local government election in any electoral area in Great Britain,
(ii)would be entitled to vote as electors at a local election in any district electoral area in Northern Ireland, or
(iii)would be entitled to vote as electors at a European Parliamentary election in any electoral region by virtue of section 3 of the Representation of the People Act 1985 (peers resident outside the United Kingdom), and

(c)the persons who, on the date of the referendum—

(i)would be entitled to vote in Gibraltar as electors at a European Parliamentary election in the combined electoral region in which Gibraltar is comprised, and
(ii)fall within subsection (2).

(2)A person falls within this subsection if the person is either—

(a)a Commonwealth citizen, or

(b)a citizen of the Republic of Ireland.

(3)In subsection (1)(b)(i) “local government election” includes a municipal election in the City of London (that is, an election to the office of mayor, alderman, common councilman or sheriff and also the election of any officer elected by the mayor, aldermen and liverymen in common hall).

The legality of this provision was challenged before the Court of appeal in Shindler and MacLennan v. Chancellor of the Duchy of Lancaster and Secretary of State for Foreign and Commonwealth Affairs [2016] EWCA Civ 469. The Case appeared before the Master of the Rolls, Lord Justice Elias and Lady Justice King and concerned the legality of excluding British citizens who are resident abroad but who have not registered on the electoral role for more than 15 years from the right to vote in the forthcoming EU Referendum.

The case has been well publicised and involved a World War II Veteran, Mr Shindler, who moved to Italy following his retirement and who was awarded an MBE. He was last on the electoral register in 1982. Ms MacLennan was a qualified lawyer and had lived in Brussels since 1987. She was last on the electoral register in 1987. Both had British passports and were not nationals of any other state.

On 16 March 2016, the claimants filed a claim form applying for permission to apply for judicial review seeking declaratory relief following royal assent for the EU Referendum Act 2015 in December 2015. Their case was that the 15 year rule as applied to eligibility to vote in the EU referendum constituted a restriction on their right of free movement, and that this restriction was not, and could not be, objectively justified as a proportionate means of achieving a legitimate objective. The claimants sought a declaration that section 2 of the 2015 Act was incompatible with their directly effective EU law rights.

Decision

The Court found that:

  • Section 2 of the 2015 Act did not engage EU law.
  • Section 2 of the 2015 Act was not a restriction on the rights of free movement enjoyed by the claimants as EU citizens.
  • In any event, if it were such a restriction, section 2 of the 2015 Act was objectively justified.

They granted the claimants leave to apply for judicial review but refused the application for a declaration of incompatibility.

Scope of EU law

The Court of Appeal decided that section 2 of the 2015 Act did not fall within the scope of EU law, differing from the approach of the Divisional Court. The Court of Appeal at paragraph 16, took the view that ”a decision by a Member State to withdraw from the EU is an exercise of national sovereignty of a special kind for which the TEU has made the express provision that this may be done in accordance with a Member State's own constitutional requirements.”

Interference with free movement

While finding that the 2015 Act did not fall within the scope of EU law, the Court of Appeal went on to consider the interference of the 15 year rule with free movement rights. The Court considered the decision in R (Preston) v Wandsworth London Borough Council [2013] QB 687 and broadly agreed with the approach of the Divisional Court: both courts found that the 15 year rule did not restrict free movement.

Common Law claim

The Court of Appeal rejected the common law argument of right to vote as a ‘constitutional right’. The court found at paragraph 49 that “there is no such common law right… which could take precedence over an Act of Parliament. That was the answer given by the Supreme Court in Moohan v Lord Advocate [2014] UKSC 67, [2015] AC 901, where a similar argument was raised on behalf of prisoners who had been excluded from the franchise by section 3 of the Representation of the People Act 1983 Act”.

Conclusions

Lord Justice Elias and Lady Justice King agreed with the judgment of the Master of the Rolls, and Elias LJ stated:

“the construction of Article 50 adopted by the Master of the Rolls, with which I entirely agree, simply recognises the political reality that EU law can have no part to play in the decision whether a state chooses to remain in the EU. As a consequence of this construction, nothing in fact turns on the question whether it is EU or UK law which takes precedence. Even if it is EU law as a result of section 2(1), the EU has chosen to exercise its power so as to refer sovereignty back exclusively to the UK.”

As EU law did not apply, Mr Shindler and Ms MacLennan were not able to obtain a declaration of incompatibility, and British ex-pats who had not registered to vote in the last 15 years were unable to have a say in the EU referendum.

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