Does loss of the right to vote for residing more than 15 years outside the UK violate EU freedom of movement?
On 25 October 2012 the Court of Appeal handed down a judgment ( EWCA Civ 1378) on whether UK laws restricting the vote to right after 15 years of non-UK residence violated EU freedom of movement.
The case is interesting as not only is it the first time the compatibility of the 15 year rule with freedom of movement has been tested, it also discusses the extent national voting rules fall into member states’ competence.
Mr Preston is a UK national who has been living in Spain since May 1995. In September 2009 Mr Preston applied to Wandsworth Council in London (the “Council) to register as an overseas elector to vote at the general election in May 2010. The relevant domestic legislation, sections 2 and 3 (a) and (c) of the Representation of People Act 1985 provide that:
“a person qualifies as an overseas elector…[if] he was included in a register of parliamentary electors… at any time falling within the period of 15 years”.
Mr Preston had last registered to vote with the Council in 1992, more than 15 years prior to his application, and accordingly the Council refused his application.
The Judgment of the Divisional Court
Mr Preston brought judicial review proceedings against the Council in which he alleged that the 15 year rule deprived him of his constitutional right to vote in UK elections and penalised him for exercising his fundamental rights to freedom of movement as a citizen under article 21 TFEU and as a worker under articles 45 and 49 TFEU.
He sought three alternative remedies from the Divisional Court:
i. to interpret the 15 year rule in conformity with freedom of movement so as to allow him to register as an overseas voter notwithstanding the 15 year rule; or
ii. if the 15 year rule could not be construed compatibly with freedom of movement, to disapply the 15 year rule; or
iii. to interpret an exception of the 15 year rule not applying to certain Crown employees working abroad as extending to all overseas residents.
On 1 December 2011 the Divisional Court dismissed Mr Preston’s claim and refused to grant him any of the remedies sought ( EWHC 3174 (Admin).)
The Divisional Court held that the 15 year rule was “too indirect and uncertain” to restrict freedom of movement. Furthermore, the Divisional Court found that even if the 15 year rule did restrict freedom of movement, it was a proportionate interference as limiting the right to vote in national elections to citizens living in the country was a legitimate aim. The Divisional Court declined to make a reference to the Court of Justice as it held that the issue of restrictions and justification for restrictions fell within domestic competence.
The Parties’ Arguments
Mr Preston appealed the Divisional Court’s judgment to the Court of Appeal, arguing that the Divisional Court had applied the incorrect legal test of requiring there to be a barrier or obstacle for the 15 year rule to restrict freedom of movement. The correct test was whether the 15 year rule provided a disadvantage to the continued exercise of freedom of movement. The restriction was not a justified interference as it did not pursue a legitimate aim, it was 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 and reside in another Member State”.
The 15 year rule was also “too blunt an instrument” and “too exclusive a criterion” to be proportional. Instead, less intrusive measures such as a requiring an overseas citizen to travel back periodically should have been used to meet the objective of there being a connection between the voter and the country, at [paragraphs 55, 60 and 61].
The Council argued that the 15 year rule did not engage freedom of movement at all, since the right to vote was not an economic right under article 45 TFEU and that article 21 TFEU did not grant a citizen a right to vote in national elections, thus a member state’s parliamentary franchise fell outside the scope of TFEU, [at paragraphs 67 and 68].
The Judgment of the Court of Appeal
The Court of Appeal unanimously upheld the judgment of the Divisional Court and dismissed Mr Preston’s appeal. Lord Justice Mummery gave the leading judgment and made a number of interesting points. Firstly, he held that the 15 year rule does engage free movement. He said that although:
“there is a sense in which the right to vote in national elections is outside the ambit of the TFEU”
that the UK could not legislate without regard to the impact on freedom of movement. For instance, the loss of the right to vote after one month of non-residence would constitute an unjustified restriction of freedom of movement, [paragraphs 70 and 72].
Secondly, he considered that the 15 year rule did not constitute a restriction on free movement as it was:
“not in terms an express restriction on free movement. Nor is it in substance a disguised or inherent restriction on free movement. The claimant [Mr Preston] therefore needs some evidence of potential restriction. His problem is lack of evidence”, [paragraph 78].
Mummery LJ did not accept the argument that the potential of losing the right to vote after 15 years of residence abroad would deter a person from exercising their right to freedom of movement. This was because:
“[I]n 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…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”, [paragraph 79].
Therefore he upheld the Divisional Court’s finding that the 15 year rule was “too indirect and too uncertain” to constitute a restriction on free movement. He also noted that in any case the 15 year rule was just a suspension of the right to vote, a person could always reactivate the right to vote by returning to reside in the UK, [paragraphs 76 and 79].
Mummery LJ distinguished social benefit cases such as Stewart v. Secretary of State for Work and Pensions Case C-503/09-21 July 2011, in which the Court of Justice had held that UK rules requiring a person to be present in the UK for 26 weeks in the previous 52 weeks to receive incapacity benefit were an unjustified restriction of a citizen’s freedom of movement. The 15 year rule was:
“qualitatively and quantitatively different from those more direct, certain and immediate obstacles and barrier…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”, [paragraph 81].
Mummery LJ then went on to find that even if the 15 year rule did restrict freedom of movement, it was a justified interference: the 15 year rule tested the strength of a British citizens connection with the UK, this was a legitimate aim, residence was a relevant criterion, and 15 years was a proportionate time, given that it reflected three parliamentary terms. Furthermore, a “bright line rule” was required for administrative expediency; one could not expect a detailed assessment to be made in each individual case, [paragraphs 89-92].
The Case establishes that although the UK enjoys a wide discretion regarding its national voting rules, it cannot legislate without regard to freedom of movement. This is an example of the formidable negative competence of EU law, as its prohibitory measures can significantly affect many measures falling within member state competence.
The Case also shows that in order to restrict freedom of movement there needs to be an obstacle or barrier to the exercise of the right. This is determined by the length of time of non-UK residence before a citizen is deprived of a right. The 15 year rule was held not to be a restriction on free movement but a one month rule would clearly be such a restriction. Length of time before the denial of the benefit is the key distinguishing factor between the 15 year rule and the social benefit rules which did violate freedom of movement. It is clear that the UK should be very careful not to shorten the 15 year rule lest it violate freedom of movement.
It is interesting that both the Divisional Court and the Court of Appeal focused upon the restriction placed by the 15 year rule on a citizen’s freedom of movement under article 21 TFEU as opposed to a worker’s freedom of movement under article 45 TFEU. This demonstrates the shift from an economic to a social focus in EU law. For a fascinating discussion about the free standing nature of a citizen’s free movement rights under article 21, see Advocate General Sharpston’s opinion in Zambranco v ONEM Case C-34/09 September 2010.
Finally, Mr Subiotto QC, counsel for Mr Preston, pointed out that only six member states restrict the voting rights of their citizens residing abroad [paragraph 65, Case]. This leads to the interesting question of whether the EU could argue that member states divergent laws on national voting are a potential barrier to the internal market and thereby justify harmonisation under article 114 TFEU? This would firmly take national voting rules outside the realm of member states’ competence.