Preston, R (on the application of) v The Lord President of the Council

The claimant supports the Divisional Court as correctly deciding that:-

It is contended that the court should then have gone on to hold that the 15 year rule:-

The court ought therefore to have declared that the 15 year rule:-

Taking each issue in turn I shall summarise the claimant’s numerous arguments in support of the appeal.

According to Mr Subiotto QC, who appears for the claimant, the main flaw in the judgment under appeal is in the conclusion that the 15 year rule does not restrict the right of free movement when it plainly does. The Divisional Court did not apply the correct legal test to identify a restriction of a fundamental EU right. In its reasoning the court referred to there being no “obstacle”, “disadvantage” or “barrier” which was “likely” to deter the exercise of the right to free movement. That test was contrary to the established principles governing the interpretation and application of the relevant provisions of the TFEU.

The correct approach is that the right to free movement is restricted, if the national legislation is capable of restricting that right, or is liable to deter the exercise of it, by placing at a disadvantage certain nationals of the Member State on the sole ground that they have exercised the right of free movement: see Nerkowska Case C-499/06 [2008] ECR 1-3993 at [32], a case on the requirement of residence in national territory (Poland) for a disability pension for civilian victims of war or repression, and K.Tas-Hagen at [30].

The undoubted disadvantage for the claimant in this case is triggered by the fact that he exercised his EU right to move to another Member State and has continued to reside outside the UK and in another Member State for more than 15 years. He is now denied the right to vote in the Member State of which he is a citizen, while not having the right to vote in the Member State in which he resides, but of which he is not a citizen. That disenfranchisement would not have occurred if the claimant had stayed in the UK. If he wants to vote in a parliamentary election in the UK, he has to relinquish his EU right to free movement to another Member State and return to reside in the UK.

The disadvantage suffered by the claimant is disenfranchisement in the UK. That is certain and direct in its effect and is capable of discouraging or hindering free movement.

Mr Subiotto says that there is no de mimimis exception to what counts as a restriction of the free movement right.Even a minor restriction of it is prohibited by EU law, if it is liable to have a disadvantageous consequence that would not have arisen if a British citizen resident in another Member State had decided to remain within the territory of his own Member State: Commission v. France Case C-168/98 [2000] ECR 1-1049 at [46].

It is not necessary for the claimant to produce specific evidence to show that the 15 year rule has led a British citizen in an actual case to refrain from exercising the free movement right and to suffer actual detriment. Nor is it necessary for the claimant to show that the disadvantageous consequence arose at the moment when he first chose to go and live in Madrid. The disadvantageous consequence may occur at a later date, such as at the end of 15 years residence in Madrid: what matters is that the disadvantage of, in this case, disenfranchisement, is linked to the continued exercise of the EU right.

Although Mr Subiotto accepts that the rule would be unlikely “in itself” to deter anyone from leaving the UK to live in another Member State, he says that, even in the initial stages of moving from the UK, the 15 year rule is capable of operating, or is liable to operate, or could operate, as a contributory factor in deterring free movement by those intending to move to another Member State where they may reside for a period exceeding 15 years.

In this case the consequences of the application of the 15 year rule for British citizens exercising their right to free movement were not “too indirect and uncertain.” The disadvantages of the 15 year rule were liable to deter the exercise of the right to free movement. That potential deterrent was unquestionably a restriction of the right. The decision of the Divisional Court threatened to demean the right to vote for many British citizens by denying enfranchisement in consequence of exercising a fundamental EU right. The fact is that the claimant is a British citizen who has been disenfranchised for exercising his right to establish his business in Spain and to live there. Only by relinquishing his EU right and returning to reside in the UK can he regain his constitutional right to vote.

Mr Subiotto criticises the reliance by the Divisional Court’s on the judgment in Graf Case C-190/98 [2000] ECR 1-493 at [25] for the proposition that a national measure would not constitute a restriction on free movement, if its effects on the freedom were “too indirect and uncertain.” In that case there was nothing in the measure in question, which related to payment of compensation on termination of employment, that was linked in any way to moving to take up employment in another Member State: that was only an uncertain and indirect possibility dependent on a future and hypothetical event i.e. compensation on the subsequent termination of the contract, which termination was not at the worker’s initiative and was not attributable to him.

In the case of the 15 year rule disenfranchisement flowed with certainty and directness from the decision of a British citizen to reside in another Member State in excess of the specified period. The fact that the rule would not bite on a British citizen who in fact returns to the UK within the 15 year period does not render the rule “too indirect and uncertain” in its application.

The judgment of the Luxembourg Court in Government of the French Community and Walloon Government v. Flemish Government Case C-212/06 [2008] ECR 1-1683 at [51]-[55] is cited for showing how a restriction linked to the exercise of a fundamental freedom is prohibited, if it is “capable of hindering” the exercise of the right, even if it only has a “marginal effect” on freedom of movement by rendering its exercise less attractive. Stripping a citizen of his right to vote in his Member State could hardly be described as a “marginal effect” or as a “minor” restriction. It is hard to imagine a more significant diminution of a person’s citizenship rights. Citizens are liable to change residence in order to preserve that right.

The witness statements relied on by the claimant are evidence of the strength of the objections to the 15 year rule from British citizens residing in other Member States. The evidence is of strong resentment at having to choose between preserving national voting rights and exercising the right to reside in another Member State.

There was no evidence, Mr Subiotto says, entitling the Divisional Court to say that, in the case of a person who had resided in another Member State for more than 15 years, disenfranchisement would not cause them to “up sticks” and return to the UK. In any event that was an irrelevant factor, since the correct test of an offending restriction is not one of the efficacy of the consequential disadvantage, but whether there was a disadvantage at all that was liable to deter free movement.

Mr Subiotto QC criticises the Divisional Court for wrongly concluding that the 15 year rule pursues a legitimate objective and that it does so in a proportionate manner.

To be legitimate the objective must be an overriding reason in the public interest. It was not legitimate to remove the right to vote from those whose links with the UK have diminished and who are not for the most part directly affected by laws passed in the UK. It was contrary to the principles on which the EU was founded to hold that an EU citizen, by exercising the freedom to reside or establish himself in another Member State, thereby divorces himself from his country of citizenship and relinquishes the most fundamental constitutional right that citizenship brings. It is also submitted that the 15 year rule is not appropriate to ensuring the attainment of the objective.

Mr Subiotto criticises the Divisional Court for giving more weight to the ECHR case law on Article 3 of Protocol 1 and the EU case of Eman v. Sevinger on discrimination involving a non-EU country, than they bear with regard to justification of the residence requirement. An unjustified restriction on the EU right to free movement may exist without establishing an infringement of Convention rights of discrimination.

EU law is founded on achieving an even closer union among the peoples of Europe. The exercise of free movement rights over a particular period of time does not diminish the citizen’s links to his state of origin to an extent that would justify stripping him of his right to vote. It is contrary to the whole concept of EU citizenship that a citizen’s link to his state of origin is presumed to have diminished solely because he has exercised his fundamental right to move to and reside in another Member State. He is simply exercising his right as an EU citizen: he is not deciding to disconnect himself from his state of origin.

The legitimacy of the 15 year rule must be approached from the EU perspective rather than as a UK national policy objective. Such a rule is not universally regarded as necessary. It is not even generally considered to be desirable. The majority of the 27 members of the EU do not have a residence requirement for the right to vote. They extend that right to all citizens regardless of residence overseas. Only 6 or so relatively small states have a residence rule. The great majority of the States of the Council of Europe have no residence requirement on voting and the Council of Europe has indicated that such restrictions on the voting of non-residents are undesirable.

Reference has also been made to other factors as undermining the purported justification of the rule: the permeable borders of many EU Member States; advances in technology and communications which mean that links between Member States are not materially different from links within Member States; and the inconsistent treatment afforded to those categories of persons, who remain entitled to vote as exceptions to the general effect of the 15 year rule.

In brief, the Divisional Court was wrong to hold that the objective of the 15 year rule was a necessary objective in the public interest capable of overriding the fundamental right to free movement, or that it was appropriate to achieve that end.

Finally, the Divisional Court wrongly applied the test of proportionality. It erred in not examining whether there were any alternative measures, or sets of measures, which could achieve the same result with a less restrictive effect on freedom of movement. The 15 year rule is disproportionate, as it goes beyond what is necessary to attain the objective.

In the social benefit cases the Luxembourg Court rejected, on the grounds of lack of proportionality, attempts to justify residence conditions on the basis of limiting the benefit to a degree of genuine link or connection between a citizen and the Member State from which the benefit is claimed. The 15 year rule is too blunt an instrument to measure citizenship commitment. It is too exclusive a criterion by which to judge the degree of connection with a Member State. A continued connection may exist in forms other than residence. As shown by the witness statements British citizens may retain numerous links to the UK, notwithstanding their residence in another Member State for 15 years or more e.g paying taxes, representing the UK in an international institution, representing firms with their HQ in the UK and holding academic positions in the UK.

The Divisional Court ought to have considered other, or additional, criteria that might have achieved the objective of the 15 year rule, but were less restrictive of freedom of movement. Other possible measures were canvassed as conditions which had to be complied within order to avoid losing the right to vote, such as a requirement for overseas voters to register periodically, or to exercise the right, or to travel back to the UK to vote, or to have resided in the UK for a minimum period at some point.

If the court is not confident about the correctness of the claimant’s submissions, Mr Subiotto says that it should not reject them without first making a reference to the Luxembourg Court under Article 267 of the TFEU for a preliminary ruling on interpretation.

Logically the first question is whether the Divisional Court ought to have held that the 15 year rule falls outside the scope of application of the TFEU and beyond the scrutiny of EU law. If so, the issues whether the rule is a restriction on free movement and whether it is justified do not arise for decision.

The respondent takes the point that there are limits to the right of free movement under EU law. It is contended that free movement rights do not apply so as to extend the right to vote in a parliamentary election in either the Member State which a citizen has left, or in the Member State, to which that citizen has moved. The right to vote in a general election is purely a domestic matter in which EU law has no influence or interest. EU law does not expand the right to vote in the UK, which does not fall within the ambit of the free movement right.

Mr Coppel developed in detail his overall submission that the claim fails at this first hurdle and should be dismissed on that ground.

There is no dispute that Member States can choose and have in fact chosen to lay down their own conditions for voting in national elections and that they differ from country to country. The Venice Commission’s Report on Out-of-Country Voting (24 June 2011), which notes that free movement rights have increased the number of citizens resident overseas, proceeds on the basis that the conferral of the franchise upon overseas residents is a matter within national sovereignty.

Further, Mr Coppel submits that an obstacle or barrier in the form of the 15 year rule is not self-evidently an economic matter directly concerning the employment of workers in another Member State under Article 45, or the self-employed setting up establishments in another Member State under Article 49. No evidence has been adduced to substantiate the assertion that the rule operates directly or indirectly as a restriction on employment or on setting up an establishment in another Member State.

It is also submitted that there is no basis in fact or law for regarding the right to vote in national elections as a relevant facet of the citizenship right to move and reside freely in other Member States under Article 20 and 21, or as giving rise to an implied right to vote in national elections in the citizen’s home state. Mr Coppel emphasises that (a) the Articles on citizenship rights treat the right to vote in national elections as a separate matter from the right to move and reside freely within the territory of Member States; and (b) the only guaranteed voting rights in those Articles are expressly limited to local (municipal) elections and European Parliament elections of the host state. There is simply no mention in those Articles of the right of the EU citizen to vote in any national elections. No such right could or should be implied into the Treaty Articles. The express mention of the right to vote in certain elections (EU Parliament and municipal elections) excludes the possibility of an implied right to vote in other elections (national/parliamentary) not mentioned at all in the TFEU.

Like the Divisional Court I am not persuaded by Mr Coppel’s ingenious submissions that the claim should be dismissed on the ground that the 15 year rule cannot, in principle, engage the right to free movement and residence, that it falls outside the scope of application of the economic and citizenship rights of free movement and that it is therefore immune from all scrutiny under EU law.

I agree with Mr Coppel that there is a sense in which the right to vote in national elections is outside the ambit of the TFEU: that franchise exists solely by virtue of the domestic legislation of Member States; it is not the express creation of any of the Articles in the TFEU. But for the 15 year rule, the appellant does not have a right to vote in a parliamentary election in the UK by virtue of being a citizen of the EU: he only has that right by virtue of s.1 of the Representation of the People Act 1983.

However, it does not follow from the fact that the right to vote is created and conferred by domestic law that Member States can lay down in their electoral law the conditions of the Parliamentary franchise without regard to the impact that the conditions may have on the exercise of fundamental rights that exist by virtue of the TFEU. As Elias LJ also pointed out, the claimant does not seek to imply into Article 21 a right to vote that is inconsistent with its express terms nor does he claim it in right of being an EU citizen, or as a matter directly governed or conferred by EU law. He claims the right to vote under the 1985 Act.

Even in areas falling within their national sovereignty, the exercise of competence by a Member State is subject to the applicable provisions of EU law, in particular the provisions that confer fundamental rights. One such right is that of moving and residing freely in the territory of Member States. If the conditions for the parliamentary franchise laid down in the 1985 Act restrict the exercise of the right of free movement and residence, the courts of the Member States are bound to address the question whether those conditions are objectively justified. It is not difficult to devise hypothetical examples of extreme conditions, which, though very unlikely to occur in practice, could affect the right to vote and could deter freedom of movement, but could not possibly be justified. No Member State is likely to deny the right to vote to a citizen for residing for more then 1 month a year in another Member State, but if it did, that would obviously constitute an unjustified restriction on freedom of movement.

In my judgment, the real issues in this case are whether it has been established by evidence and argument (a) that the 15 year rule restricts the right of free movement and residence and, if so, (b) whether that restriction is objectively justifiable as pursing a legitimate objective by proportionate means.

The Divisional Court had to make an objective assessment of the potential effect of the 15 year rule as a restriction on free movement. As Elias LJ said at [38] the claimant had to show that the obstacle “can fairly be said to deter persons from exercising their rights.” He concluded that that had not been established on the evidence and that there was no evidential basis for saying that the rule created a barrier of any kind. In practice its effect was “too indirect and uncertain” to be a restriction of the right that required justification. It was unrealistic to suppose that, in practice, the rule was a barrier or an obstacle that deterred or could deter free movement. At the start of a person taking up residence in another Member State it was wholly uncertain whether the rule would bite at all: it all depended on future events.

I start from the position that (a) the 15 year rule does not expressly restrict free movement and (b) the rule is not one that, by its very nature, restricts free movement. The Divisional Court was correct to consider the potential effect of the 15 year rule on free movement in practice. As for the witness evidence relied on by the claimant, what the statements certainly show is that there are British citizens living overseas who are very upset, resentful and aggrieved by it and think that it is unjust and unnecessary and that, without any public interest justification, they have been unlawfully penalized, disadvantaged and discriminated against for exercising their fundamental freedoms under the TFEU.

In my view, the conclusion of Elias LJ that any interference with the right of free movement is, in cases of this kind, “too indirect and uncertain” to require justification is not contradicted or undermined by that evidence. He said:-

“38…Not every disadvantage to those who move to live in another member state resulting from the discriminatory application of domestic laws on residence grounds amounts to an interference sufficient to require justification. The court has held, for example, that in order to constitute an interference with the freedom of movement of workers, the rule which is said to create the restriction must affect access to the labour market in a way that is not too indirect or uncertain: see Graf [2000] ECR 1-493. I see no reason why that principle should not apply where the rights of free movement derived from citizenship are being relied upon.”

As Elias LJ pointed out, Mr Subiotto accepted before the Divisional Court that “it was unrealistic to suggest that the possibility of being denied the right to vote 15 years down the line would in practice deter anyone from leaving the UK to live in another member state”: see [39]. Nor, as Elias LJ observed, would the rule discourage someone who has been resident overseas for almost 15 years from staying abroad in another member state: “it is inherently unlikely that the loss of the right to vote would be sufficient to cause them to up sticks and return to the UK.”

I do not agree with Mr Subiotto that the Divisional Court applied the wrong legal test in determining whether the 15 year rule was a restriction on free movement. The real difficulty is that no test has been established that will produce the result for which Mr Subiotto contends. As I have said, the 15 year rule is not in terms an express restriction on free movement. Nor is it in substance a disguised or inherent restriction on free movement. The claimant therefore needs some evidence of potential restriction. His problem is lack of evidence.

I agree with Mr Subiotto that what is effectively a suspension of the right to vote of those British citizens who voluntarily choose to reside in another Member State for more than 15 years can be characterised as a “disadvantage.” It does not follow, however, that every disadvantage of non-residence in the UK is a restriction on or deterrent to free movement. Further, as disenfranchisement is only triggered after the passing of 15 years’ residence overseas, a long term view has to be taken when considering whether the prospect of ceasing to be eligible as an overseas voter after the end of 15 years of non-residence in the UK could deter free movement.

That question obviously does not have to be answered in terms of statistical evidence or specific evidence of actual cases of deterrence. In practice the claimant’s assertion about the potential effect of the 15 year rule on free movement is very difficult to demonstrate by any means, because it does not square with ordinary human experience. In the course of crowded human lives over a period of 15 years inevitable uncertainties, unknowns and contingencies make it is impossible to arrive at a reliable or credible conclusion that the rule could deter free movement. No legal test, whether formulated in terms of “probability”, or “likelihood”, or “capability”, or “liability”, or “real possibility”, addresses the basic difficulty that what is asserted in the claimant’s case is too speculative, remote and indefinite to establish a case. Every British citizen knows that, over a period of 15 years, he or she will be potentially affected by so many unforeseeable circumstances, combinations of circumstances and changes in circumstances that it is simply not possible for a court or anyone else to conclude that the 15 year rule could deter British citizens from going to reside and work in other Member States of the EU, or from doing so for as long as they like.

Disenfranchisement by reason of 15 years non-residence in the UK is, in my view, both qualitatively and quantitatively different from those more direct, certain and immediate obstacles and barriers to basic day-to-day living that are set up by social benefits rules requiring the claimant to be present in the UK at the date of claiming the benefit and/or resident in the UK for a relatively short period before the date of claiming the benefit. Such rules have been held to amount to restrictions on free movement that must be justified. I agree with the Divisional Court that the 15 year rule differs from those rules and does not create a restriction that has to be objectively justified under EU law.

In case it had reached the wrong conclusion on the restriction issue, the Divisional Court prudently dealt with the justification issue on both legitimate aim in the public interest and proportionate means. I will do the same, because, if the 15 year rule is justified, the arguments about whether or not it constitutes a restriction on freedom of movement that has to be justified are academic.

I begin with two preliminary comments on the burden on the respondent to justify the 15 year rule.

Like other Member States, the UK has a wide margin of appreciation in EU law when determining parliamentary franchise measures. Each Member State sets its own conditions on the right to vote in its national elections. Those conditions may justifiably differ from conditions set by other Member States.

I agree with Mr Subiotto QC that the general approach of the Strasbourg Court to justification of the 15 year rule in Doyle and in the other cases cited on the right to vote and to stand for election was in the particular context of the different provisions in the Article 3 of the First Protocol to the ECHR. The ECHR cases are not concerned with the right of free movement. EU law and the ECHR are two separate systems. However, the contextual difference does not detract from the value of the rulings as a general indication of the factors that may potentially justify residence as a criterion for the right to vote and the standards to be adopted in determining justification of a restriction on the right to vote in national elections by reference to the legitimate aim and the proportionality of the restriction on free movement within the EU. In Eman and Sevinger Case C-300/04 [2006] ECR 1-8055 the Luxembourg Court expressly stated, by reference to the decisions of the Strasbourg Court on Article 3 to the First Protocol, that:-

“55.

…the criterion linked to residence does not appear, in principle, to be inappropriate to determine who has the right to vote and to stand as a candidate in elections to the European Parliament.”

In that case the Luxembourg Court considered the legality of a provision under which Dutch nationals resident in the overseas territory of Aruba were not permitted to vote in Dutch elections to the European Parliament. The case was not a free movement challenge. The Court held that the residence requirement was, in principle, justifiable, though it went on to rule that the particular terms of Dutch law were discriminatory and were not objectively justifiable.

In short, I agree with Elias LJ that the ECHR cases upholding residence rules in the electoral context are “highly material” to justification of the 15 year rule. See [45].

Turning to the points of detail, I am unable to agree with the numerous legal and other criticisms of the Divisional Court’s decision on justification. I highlight only the main points.

First, the Divisional Court was entitled to hold, on the basis of the evidence and in law, that the 15 year rule had a legitimate aim, i.e. to test the strength of a British citizen’s links with the UK over a significant period of time by measuring past commitment to the UK and seeing whether it was sufficiently diminished or diluted to justify removal of the right to vote in parliamentary elections. That aim was legitimate for the purpose of confining the parliamentary franchise to those citizens with an ascertainable, continuing, close and objective connection with the UK, whose government made decisions and whose Parliament passed laws that most directly affected those British citizens resident in the UK.

Secondly, the residence of a citizen is not, as was suggested in argument, an arbitrary measure of connection with a country: far from it, residence is a relevant, rational and practicable criterion for assessing the closeness of the links between a British citizen and the UK.

Thirdly, the 15 year rule is proportionate to the aim. The length of the period represents three Parliamentary terms. It provides a substantial opportunity for continued voting by British citizens who have moved to reside in another EU country.

Fourthly, it is impracticable for the franchise criteria to be other than bright line rules capable of reasonably consistent practical application. It would be unworkable and disproportionate for the electoral authorities to have to make individual merits assessments of the particular circumstances of each resident in another EU country on a case-by-case basis in order to determine how close a connection there is between that particular individual and the UK despite prolonged absence.

Fifthly, there is no objectionable inconsistency of treatment arising from the excepted categories of overseas residents, such as members of the armed services and Crown employees. In general, they do not move to reside overseas as a voluntary exercise of the right to free movement. Their continued right to vote, despite long residence overseas, is well established and objectively justified: their circumstances are distinguishable from those of the claimant and others who, like him, have chosen, for their own personal reasons, to live in another Member State.

Sixthly, the social benefits cases, whilst they illustrate the way in which the general principles on free movement can limit the application of national legislation, do not govern the outcome of this case. In those cases residence or presence conditions at a particular time, such as the date of application for the benefit, have been held to be an unjustified restriction on free movement of the claimant, but they do not require the domestic courts to conclude that a condition of non-residence for a prolonged continuous period resulting in the suspension or loss of the right to vote cannot be justified. As Elias LJ said in his judgment:-

“44.

The fact that some residence tests do not properly or proportionately measure the strength of commitment does not mean that the adoption of a non-residence test cannot legitimately measure the weakening of commitment. This rule does not fix on non-residence at some particular point in time; it requires a consistent period of non-residence.”

The social benefits cases concern obstacles or barriers to access to financial benefits in a Member State for living on from day-to-day. The obstacles or barriers take the form of having to satisfy a more immediate requirement of presence or a short term requirement of residence. It is not surprising that in those cases there were found to be unjustified restrictions on free movement.

It is not necessary, in order to decide this appeal, to make a preliminary reference under Article 267 for a ruling by the Luxembourg Court. The issue of justification is a matter for the decision of the domestic courts in accordance with well established general principles of EU law. The ruling on justification alone is decisive of this case.

The arguments in this court have raised some points of general importance. If the court does not rule on them in this case, it will probably have to do so in another case. Those are sufficiently compelling reasons for granting permission to appeal to the claimant and on the respondent’s notice. However, the claimant has not shown that the Divisional Court was wrong to dismiss the claim for judicial review on both the restriction point and the justification point. I would dismiss this appeal. I would also decide against the point on scope of application taken in the respondent’s notice.