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Court of Appeal dismisses challenge to EU membership referendum franchise and ’15 year rule’

Shindler & Anor v Chancellor of the Duchy of Lancaster [2016] EWCA Civ 469

Related Member(s):
Anita Davies, Christopher Brown, Aidan O’Neill QC (Scot)
Related Practice Area(s):
Immigration, Asylum and Free Movement, EU Law, Human Rights, Public Law

The Court of Appeal dismissed the appellants’ challenge to the EU Referendum Act 2015, s 2, which excluded from the franchise for the EU Referendum UK citizens who have moved abroad and were last registered to vote in the UK more than 15 years ago.

The appellants argued that the Divisional Court had erred in concluding that s 2 did not restrict EU free movement rights, and that even if it did, the restriction would be objectively justified as a proportionate means of ascertaining the strength of a British citizen’s link with the UK. The appellants also raised a new argument that the 2015 Act was unconstitutional, as it conflicted with the fundamental common law right of British citizens to vote.

The respondents also argued that the Divisional Court had erred in certain respects. They challenged the finding that s 2 was within the scope of EU law and the rejection of their argument that the appellants’ delay disentitled them to a remedy.

The court held that the Act did not fall within the scope of EU law. It considered the decision to withdraw from the EU to involve an exercise of national sovereignty, and noted that the Treaty of the European Union had expressly provided that withdrawal must accord with the member state’s constitutional requirements.

In addition, the court examined whether s 2 could be said to infringe EU free movement rights if the provision did come within EU law.  It held that the CJEU case law required both that the domestic measure under challenge penalised the exercise of free movement rights and that it had an actual or potential deterrent effect on the current or future exercise of such rights.  The Court agreed with the Divisional Court that it was not reasonably likely that such disenfranchised citizens would opt to return as a result of the legislation.

The court also rejected the appellants’ contention that any common law right to vote could take precedence over an Act of Parliament.

The appellants were refused permission to appeal the Court of Appeal decision at a hearing in the Supreme Court on Tuesday 24th May.

Aidan O’Neill QC (Scot), Christopher Brown and Anita Davies were involved in this case.