#EURef: British expats robbed of vote

Appellants have challenged the lawfulness under EU law of the UK’s EU Referendum Act, in respect of its exclusion from the EU Referendum of British citizens who, in exercising their EU freedom of movement rights, reside outside the UK and have been resident outside the UK for a period of more than 15 years, writes Catherine Feore.

The appellants claimed that their disenfranchisement constituted an unjustified restriction of their EU right to freedom to move and reside within the territory of the EU, a right that was attained by the UK joining the European Economic Community in 1973; and, separately, the appellants argue that the UK’s common law affords protection to their right to vote as British citizens and full members of the United Kingdom.

The Supreme Court refused permission to appeal. Giving the Court's decision, Lady Hale (Deputy President of the Supreme Court) said: "We should make it clear that the question is not whether this particular voting exclusion is justifiable as a proportionate means of achieving a legitimate aim.

"The question is instead, firstly, whether European Union law applies at all, as only if it does so is there any possibility of attacking an Act of Parliament; and secondly, if so, whether there is any interference with the right of free movement.”

The judge ruled that even if European Union law did apply, the Court said that this did not interfere with the right of free movement. However, the judge also said that she had considerable sympathy for the situation in which the applicants found themselves and we understood that it was something which concerned them deeply. However, she went on to claim that she could not discern a legal basis for challenging this statute.

British nationals resident in other EU countries have the right to vote in European and local elections where they reside. The Conservative Party have committed themselves to changing this situation in the current parliament, but have not yet managed to do so. The exclusion of this group is particularly unfair, given that a ‘Leave’ vote will mean that they no longer have this right.

Appellant Jacquelyn MacLennan said after the initial decision: "The Government made a manifesto commitment to enfranchise all British citizens, no matter how long they have been abroad saying that they thought that 'choosing 15 years, as opposed to 14 or 16 years, is inherently like sticking a dart in a dartboard' and that 'if British citizens maintain British citizenship that brings with it rights, obligations and a connection with this country, and that that should endure'."

We interviewed her about the case in April 2016:

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