User:Bklynneurope/2016 United Kingdom European Union membership referendum

Expat Disenfranchisement Legal Challenges
British expat Harry Shindler, a World War II veteran living in Italy, took legal action as the UK does not permit citizens residing abroad who have not lived in the UK for over 15 years to vote in elections. Shindler believed this prohibition violated his rights as he wished to vote in the referendum. He had previously raised a case in 2009 (Shindler v. the United Kingdom 19840/09) regarding his rights to vote in UK general elections that the European Court of Human Rights (ECtHR) deemed did not violate his rights.

UK High Court
Shindler first sued the UK government before the referendum, claiming that his disenfranchisement was a penalty against UK citizens who live abroad, exercising their EU right of free movement, thus violating his right as an EU citizen. This 15-year prohibition on voting, Shindler argued, discourages British citizens from continuing to exercise their free movement rights as they are required to return to the UK to vote in the EU referendum.

The High Court, on 20 April 2016, rejected Shindler’s claims, saying that it is "totally unrealistic" that the 15-year prohibition would deter citizens from settling in another Member State. The court also found that “significant practical difficulties” in allowing residents abroad for more than 15 years to vote permits the government to enact this restriction.

Further, the High Court found that this prohibition, even if it did violate EU rights, is a parliamentary prerogative as “Parliament could legitimately take the view that electors who satisfy the test of closeness of connection set by the 15 year rule form an appropriate group to vote on the question whether the United Kingdom should remain a member of the European Union or leave the European Union.”

European Court of Justice
After the referendum, Shindler brought a case against the Council of the EU in the General Court. He argued that the Council's decision (Decision XT 21016/17) to recognize the referendum was illegal as his disenfranchisement invalidated the referendum. Shindler argued that the decision lacked “definite constitutional authorization based on the votes of all UK citizens” as not all citizens were permitted to vote. He claims the Council should have "sought judicial review of the constitutionality of the notification of the intention to withdraw” because depriving UK citizens to vote in the referendum is contrary to EU law. Shindler claimed that “the Council should have refused or stayed the opening of negotiations” between the EU and the UK.

In November 2018, however, the court found Shindler’s arguments unconvincing as the decision to recognize the referendum did not “directly affect the legal situation of the applicants.” The Council’s action merely recognized and began the withdrawal procedures and did not violate Shinder’s rights.