Earlier this year, France published legislation that will take effect should the UK leave the EU without a Withdrawal Agreement. Citizens’ rights were included in this ordonnance and the subsequent decree. We take a look at the differences between what is included in the French legislation and what has been agreed in the Withdrawal Agreement. There are considertable differences.
Since last week and the announcement and article in the Connexion that Julien Fouchet is seeking claimants for a new case in the French courts to raise key issues about the rights of UK citizens post Brexit, we have had a lot of questions from members and on social media about the case and whether British in Europe is supporting it.
For background, the lawyers in our steering comm, including Co-Chair Jane Golding, who is specialised in EU law and has brought cases before the European courts, know how difficult it is to get a successful case into the European courts. We therefore need to do our own detailed background research before we come to a conclusion. At the same time there are urgent no deal issues to deal with so this will take time.
We have been considering the option of legal action from the very beginning, and have taken outside advice from some heavyweight experts. We continue to do so. But it is important to realise that there is only one shot at this. If the European Court of Justice rejects our claim that Brexit does not take away our fundamental EU rights – and not just because they consider the case has been brought too early like the Netherlands case or Shindler, but because they don’t accept the core substantive arguments – that will be the end of it. It will not be possible for anyone to bring another case. So it has to be the right case, brought on the right facts, in the right country or at EU level and ideally with some heavyweight EU advocates behind it, like the Scottish case had.
Julien Fouchet will need to take this case through the French administrative courts and be successful in persuading the courts to make a reference to the European Court of Justice. We need to assess what the likely success of each step in that process will be before we can come to a conclusion.
There is also a wider issue – as British in Europe, we are engaging with the authorities in France. As soon as we get involved in court action, this puts us in an adversarial position with the French authorities. This might not be the best way of helping our members.
So whether to support or not any litigation is not a simple decision and we are considering all the elements carefully, remaining neutral until we have. We recommend that anyone who wants to step forward as a complainant get a clear picture of what arguments are going to made, what the risks are, what the chances of success, and what the potential costs are first. Also, they need to think very carefully whether what they are doing is the best for all their co-nationals across the EU27.
Jane Golding, LLB/Maîtrise in English & French Law, Solicitor (England & Wales), Barrister (non-practising, England & Wales), Solicitor (Ireland)
Jeremy Morgan QC, retired Barrister (England & Wales)
On 27 August 2018, Edouard Philippe, the French Prime Minister, asked his ministers to begin putting into place contingency plans and enabling legislation in case the UK leaves the EU with no deal, including to ‘facilitate the stay in France of British citizens who are already resident’. You can read the statement here.