The logo of the European Court of Justice is pictured outside the main courtroom in Luxembourg
The EU’s highest court has been asked to rule on whether British nationals should be able to keep their EU citizenship after Brexit, in a major upset that could send negotiations between Brussels and the UK into chaos.
British nationals living the Netherlands had taken a case to the Amsterdam district court arguing that they should not be stripped of the EU citizenship after Britain leaves the EU.
In a decision released on Wednesday, the district court said it would refer the case to the European Court of Justice.
“It is reasonable to doubt the correctness of the interpretation of Article 20 of the Treaty of the Functioning of the European Union that the loss of the status of citizen of an EU member state also leads to loss of EU citizenship,” the court decision said.
“On these grounds, preliminary questions will be put to the ECJ [European Court of Justice].”
A spokesperson for the European Court of Justice told The Independent it was aware of the case but that the court would not necessarily formally be notified of any decision to refer a case to it until the following day.
The British nationals’ lawyers had argued that because EU citizenship is defined as "additional to" national citizenship in the Lisbon Treaty it might survive a country’s withdrawal from the EU, despite having been initially conferred by national citizenship.
Over a million British nationals living abroad in EU countries had their futures shrouded in uncertainty by the Brexit vote in 2016; a year and a half later they still lack certainty over how they will be treated after Brexit, with negotiations on the details of citizens’ rights still ongoing.
A ruling by the ECJ that UK nationals keep their full citizenship in all circumstances would completely change the dynamic of Brexit talks, where negotiators have been carefully working out individual rights applicable to particular citizens after Brexit.
Christiaan Alberdingk Thijm, the lawyer representing the plaintiffs said in a statement: “Theresa May famously said, ‘Brexit means Brexit’, but the Brits currently living on the continent have no idea what that means for them. Are you an EU citizen for life or can your citizenship be taken away from you? That is the fundamental question that will be put forward to the European Court.”
Stephen Huyton, one of the five UK nationals who brought the case, said he was “obviously delighted with the court’s decision”. He added that the ruling was the ”first step to clarity about what Brexit means for our EU citizenship”.
“This case has always been about seeking clarification,” he said.
“Not only for the 46.000 Brits living in the Netherlands, but also for the 1.2 million Brits living in other EU countries. As has been demonstrated in recent days what Brexit means is still the subject of much discussion. You cannot play with the lives of 1.2 million people as if they are pieces on a chess board.”
Jane Golding, chair of British in Europe, which represent UK citizens abroad, said she was “delighted” at the decision to refer the case, adding: “It is also clear that the EU and UK cannot finalise and sign off the final text on citizens’ rights in the withdrawal agreement until the CJEU has given its ruling and we would ask them to respect the role of the CJEU in this process.”
The European Parliament has previously suggested creating some kind of mechanism by which UK nationals could keep their EU citizenship and its associated rights by opting in, though the European Commission has shown little interest in this plan.