Avocat Fouchet ‘optimistic’ after Brexit hearing

Avocat Julien Fouchet, from Bordeaux, said he is keeping his fingers crossed for a good result, allowing a further hearing later in the year. However he said he may have to wait until around September or October before he knows.

The case argues that the Brexit negotiations are illegal because long-term British expatriates were excluded from the referendum that led to them, effectively penalising them for using their EU free movement rights.

Despite Mr Fouchet having lodged the case a year ago, today’s hearing still focussed on preliminaries – having to prove to the judges that the case is worthy of a full hearing of all the arguments because it is founded on real harm done to his clients as a result of the referendum in which they could not take part.

He said the judges noted that it was unusual for a hearing to be held at that stage (as opposed to it just being decided on paperwork) and they said it was because the subject is so unusual.

He told them of the harm his clients would face if they lose their EU citizenship, and as a result their automatic right to reside in the countries where they live – with the likes of 97-year-old Harry Shindler potentially being forced back to the UK from Italy – as well as being excluded from the EU Parliament votes next year.

He told the court it was the “last defence for British EU citizens spread across Europe”, because other approaches, such as the arguments in the Amsterdam case (which said Britons’ EU citizenship should remain despite Brexit), are unlikely to be resolved in the near future.

Mr Fouchet, heading home to France from Luxembourg, said: “There were very long debates, the judges were very interested and asked a lot of questions.

“The president of the court [lead judge] said they will consider three possibilities, that the case is admissible, it is not admissible, or that there will be another hearing that will consider the admissibility and the detailed arguments at the same time.” He is "optimistic", he said, however he added: "I'm doing everything I can but as the case and the procedure are unprecedented, the result is uncertain."

Mr Fouchet said some of the debate today revolved around the ‘Article 50 Challenge’ case, which the judges thought might complicate the issues if it goes further [it sought to prove Article 50 was never triggered properly by a clear decision of the UK parliament; it was rejected last month but an appeal has been lodged].

There was also discussion as to when exactly the two-year period mentioned in Article 50 of the Lisbon Treaty as running before a country leaves the EU started to elapse.

It is usually taken as being when UK Prime Minister Theresa May wrote to the European Council, on March 29, 2016, however Mr Fouchet said that it can be argued that it was only from May 2017 with the publication of negotiating directives by the Council of the EU authorising negotiations to start.

That was “the real European starting point for the irreversible withdrawal procedure,” he told the court.

Mr Fouchet's case is supported by a group of UK academics, professionals and other concerned British citizens called Action for Europe, and in particular their project, Action for Expat Votes.