Two Britons who are long term residents in other EU member states have failed in a High Court challenge to a provision excluding them from voting in the referendum on the UK's future membership of the EU.
Scottish solicitor Jacquelyn MacLennan, who lives in Belgium, and World War Two veteran Harry Shindler, who lives in Italy, brought a judicial review seeking a declaration that s 2 of the European Union Referendum Act 2015, by which UK citizens who have lived elsewhere in the EU for more than 15 years cannot vote, unlawfully restricted their right to freedom of movement under EU law.
They claimed that up to 2 million ex-pats were being denied the right to take part in the referendum, and that to apply a cutoff point was arbitrary where they maintained a connection with the UK through their British citizenship. A vote to leave the EU might affect their rights as residents in other member states.
However Lord Justice Lloyd Jones and Mr Justice Blake in the Queen's Bench Divisional Court ruled that while the issues raised were capable in principle of engaging EU law, the 15-year rule was "neither an express restriction on free movement nor... in substance a disguised or inherent restriction on free movement".
"We are unable to accept that the prospect of disenfranchisement in a one-off referendum is a factor which could influence a decision whether to settle or remain in another member state", the judges stated. "We conclude, therefore, that it is not a measure which requires to be objectively justified under EU law."
In any event the rule was objectively justified; residence was a relevant criterion and "very considerable respect" had to be given to Parliament's choice in the matter. The rule was not arbitrary "in any legally significant sense", and a "bright line rule" was needed to identify a point at which extended residence abroad "might indicate a weakening of ties with the UK".
The UK Government had said that if the claimants won their case, it would be impossible to hold the referendum as planned on 23 June.
The claimants have said they intend to seek leave to appeal to the UK Supreme Court.