Shindler & Anor v Chancellor of the Duchy of Lancaster & Anor

A domestic electoral franchise may engage EU law where its exercise affects EU-law fundamental rights, even though electoral arrangements remain within national competence. But a measure constitutes a restriction on free movement only where it is reasonably capable of deterring or discouraging its exercise. A speculative, remote or indefinite possibility is insufficient. The 15-year limit on overseas voting was not capable of deterring residence or continued residence in another Member State, particularly where applied to a one-off referendum. In any event, the limit was a rational, consistent and proportionate bright-line rule pursuing the legitimate aim of requiring a sufficient connection with the United Kingdom.

The claimants, British citizens resident in Italy and Belgium, sought permission to challenge section 2 of the European Union Referendum Act 2015. The provision adopted the parliamentary franchise, including the 15-year rule excluding certain British citizens resident abroad from voting. They argued that the rule unjustifiably restricted their directly effective EU-law rights of free movement and sought declaratory relief.

The court held a rolled-up hearing after Cranston J directed that permission and the substantive application be heard together. The issues were whether the franchise fell within EU-law scope, whether it restricted free movement, whether any restriction was proportionately justified, and whether delay barred relief.

1. Permission and claim. The court granted permission to apply for judicial review but refused the substantive application.
2. Engagement of EU law. A Member State may determine its electoral and constitutional arrangements, including the procedure for deciding whether to remain in the EU. That competence must nevertheless be exercised with regard to EU-law fundamental rights. Article 50(1) TEU did not create a general exemption from EU law. The reasoning in R (Preston) v Wandsworth London Borough Council and the CJEU authorities concerning nationality and other matters within national competence supported that conclusion.
3. Restriction on free movement. The relevant question was whether the measure was liable, in a realistic sense, to deter or discourage exercise of free-movement rights. The possibility had to be more than speculative, remote, indefinite, indirect or uncertain. The Court of Appeal’s reasoning in Preston was binding and compelling. The court rejected the submission that Martens created an alternative test based merely on disadvantage after exercise of free movement. Potential deterrence remained an integral element.
4. The 15-year rule was not reasonably capable of influencing a decision to settle or remain in another Member State. The claimants’ case was weaker than the parliamentary-election claim in Preston, because the present franchise concerned a one-off referendum. Section 2 therefore did not constitute a restriction requiring objective justification.
5. Alternative justification. If the rule were a restriction, it was objectively justified. Parliament could use residence and a bright-line period to assess the strength of a citizen’s continuing connection with the United Kingdom. The rule pursued a legitimate aim, was rational and proportionate, and avoided the arbitrariness and inconsistency of individualised assessments. Parliamentary consideration and the practical difficulty of establishing a new register for persons absent for more than 15 years reinforced that conclusion.
6. Delay. The claim was issued within three months of royal assent and, because it concerned EU rights, no additional promptness requirement applied. In the circumstances there was no power to refuse relief for delay.

First-instance judicial review proceedings. The judgment records that Cranston J directed the rolled-up hearing before a Divisional Court.