Preston, R (on the application of) v Wandsworth Borough Council & Anor

A national rule governing the domestic parliamentary franchise may engage EU free-movement rights even though the franchise remains within national competence. The claimant must nevertheless show a real deterrent or sufficiently direct interference with those rights. A disadvantage that is too indirect and uncertain will not require justification.

A sustained period of non-residence may be a legitimate and proportionate means of assessing whether a citizen’s connection with the United Kingdom has diminished. A bright-line rule may be adopted where individual assessment would be impracticable. EU equality principles apply only where the Member State is acting within the scope of the Treaties.

The claimant, a long-term resident of Spain, challenged the refusal to register him as an overseas elector after the expiry of the 15-year period in section 1(3) of the Representation of the People Act 1985. He argued that the rule unjustifiably interfered with his EU rights of free movement, including freedom of establishment under article 49 TFEU, and infringed EU equality principles because certain Crown employees and armed forces personnel remained exempt.

The central issues were whether the rule could engage EU free-movement rights despite the domestic nature of the parliamentary franchise, whether it created a sufficiently real interference requiring justification, and whether the rule and its exemptions were proportionate.

1. Application dismissed. The 15-year rule was capable in principle of engaging the claimant’s EU free-movement rights. The fact that the scope of the domestic parliamentary franchise fell within the United Kingdom’s competence did not prevent domestic legislation from being set aside if it unjustifiably defeated rights conferred by EU law.
2. The claimant had to establish that the rule created an obstacle capable of deterring persons from exercising their free-movement rights. Applying the approach in Graf [2000] ECR I-493, the alleged restriction had to affect free movement in a way that was not too indirect or uncertain.
3. That threshold was not met. The possibility of losing the vote after 15 years was too remote and uncertain to deter a person from leaving the United Kingdom. It was also inherently unlikely that a person who had lived abroad for 15 years, whether for economic or personal reasons, would return merely to preserve the right to vote. The absence of evidence of any practical example reinforced that conclusion.
4. Alternatively, the rule was justified and proportionate. The Government was entitled to pursue the legitimate objective of removing the vote from persons whose links with the United Kingdom had diminished and who were generally less directly affected by United Kingdom laws. A sustained period of non-residence could legitimately measure that dilution of connection. The choice of a bright-line period was permissible, and individual assessment of every overseas elector would be impracticable. The court allowed the policy-maker a significant degree of discretion, applying Arthur Gottwald v Bezirkshauptmannschaft Bregenz, Case C-103/08.
5. The residence decisions relied on by the claimant, including Stewart v Secretary of State for Work and Pensions, Case C-503/09, did not determine this issue. They concerned residence or presence requirements for assessing past commitment to a state. The present rule used a consistent period of non-residence to assess weakened connection. The reasoning in Eman and Sevinger v College van burgemeester en wethouders van Den Haag [2006] ECR I-8055 supported the legitimacy of residence-related criteria in the voting context.
6. The EU equality argument failed because general EU-law principles applied only where the Member State acted within the scope of the Treaties. The domestic parliamentary franchise was outside that scope. In any event, the exemptions for persons abroad at the request of the United Kingdom or in pursuit of its national interests were objectively justified.