Stand up to discrimination against EU citizens in the UK #DeniedMyVote

by Nicolas Hatton

Stand up to discrimination against EU citizens in the UK #DeniedMyVote

by Nicolas Hatton
Nicolas Hatton
Case Owner
Founder member of the3million, the EU citizens group representing EU citizens in the UK since 2016. French national living in the UK since 1995. Marketer by trade, human being by nature
3
days to go
£64,306
pledged of £150,000 stretch target from 2,276 pledges
Pledge now
Nicolas Hatton
Case Owner
Founder member of the3million, the EU citizens group representing EU citizens in the UK since 2016. French national living in the UK since 1995. Marketer by trade, human being by nature
Pledge now

This case is raising funds for its stretch target. Your pledge will be collected within the next 24-48 hours (and it only takes two minutes to pledge!)

Latest: Jan. 27, 2021

Divisional Court Report Day 1: a challenging day for the #DeniedMyVote challenge

Yesterday was the first of two days of legal argument in the #DeniedMyVote judicial review challenge.  It was a ‘hybrid’ hearing, with Lord Justice Lewis and Sir Michael Supperstone …

Read more

In May 2019, the UK Government denied over a million EU citizens living here their fundamental right to vote. It now denies it did anything wrong. 

We have been granted permission to take our #DeniedMyVote test case forward to a firm ruling. We now need to prepare for the full judicial review hearing and we need your support again – at least £60,000 of further donations - to get there, to challenge last year’s disenfranchisement and seek the clearest of rulings that discrimination against EU citizens as a group is as unlawful. 

Please pledge to support the case now. With your support we can not only rectify the DeniedMy Vote injustice; this test case will set a precedent in law which will be helpful in fighting any future discrimination against EU citizens.

"The #DeniedMyVote test case asks the High Court to rule that last year’s disenfranchisement was unlawful and establish a precedent that discrimination against EU nationals as a group is as unlawful as it is unacceptable in a democracy." John Halford, Bindmans LLP

 We are living through times that are difficult for all and dangerous for many.

At such times, it is especially important to make sure fundamental rights are upheld and, if necessary, defended in Court, including the right to vote and freedom from discrimination. 

These principles are at the heart of the #DeniedMyVote test case which we, the3million, and a small group of representative disenfranchised EU citizens started last July, having so far been unsuccessful in persuading the Government to accept responsibility for the debacle of disenfranchisement that was the EU Parliament Election.

Looking ahead, we know we have a compelling case to put to the Court.

Thousands of EU citizens shared their experiences of being denied the right to vote on 5 May last year.

In November, the Electoral Commission issued a special report, concluding that people who were entitled to vote and wanted to vote in the European Parliament elections in the UK were unable to do so. This is unacceptable in a modern democracy. Many of them rightly felt frustrated, disappointed that, and angry that they were unable to vote” and that significant numbers of British citizens abroad were also disenfranchised.

Then, in January, the High Court ruled our case should have permission to proceed and that there was an obvious ‘public interest’ in the outcome.

Despite all this, the Government has fought on – insisting it is blameless and that EU citizens themselves are somehow at fault for not being able to exercise their legal right to vote here. It also denies there was any discrimination built into the system.

Our legal team must now prepare for the High Court hearing to come. They and we need to analyse the Government’s evidence and arguments, prepare a robust response then prepare to put the arguments to a Judge. We also need to set aside money to protect ourselves as an organisation and our individual co-claimants from any claim from the Government.

Our previous fundraiser (now closed) raised over £70,000, thanks to your and others’ fantastic donations. Part of this has covered our barristers’ costs working at half rates, and part of it is being held to cover Government’s costs to date in case we cannot raise enough to proceed to the next stage.

We have calculated the minimum needed for this critical, further stage: £60,000. 

Please make a contribution now. If what happened last May is not challenged successfully, many other rights may be compromised and denied. It must be exposed, not only as outrageous but unlawful and discriminatory. That will establish a precedent that EU citizens will be able to use as a shield as the Brexit process continues.

Please donate now. Help us fight discrimination against EU citizens.


Update 7

Nicolas Hatton

Jan. 27, 2021

Divisional Court Report Day 1: a challenging day for the #DeniedMyVote challenge

Yesterday was the first of two days of legal argument in the #DeniedMyVote judicial review challenge.  It was a ‘hybrid’ hearing, with Lord Justice Lewis and Sir Michael Supperstone appearing in Court 2 of the Royal Courts of Justice along with one member of the Government’s legal team.  All other participants joined remotely via Skype. This posed its own challenges, with various sound problems which thankfully improved as the day progressed.


The day was dedicated to the Claimants’ case, with Gerry Facenna QC making submissions on behalf of the3million and five individual claimants.  He opened with an overview, highlighting the very real injustice to EU24 citizens who were denied the right to vote in the 2019 European Parliament elections.  The risk of widespread disenfranchisement was, he submitted, something the Government was well aware of following the 2014 European Parliament elections and it had failed to act upon recommendations and proposals intended to remedy defects in the system – including from civil servants in the Cabinet Office. Mr Facenna emphasised the significant impact on the individual claimants, all long term residents of the UK whose right to choose to vote in the country that is their home – the UK - had not been respected.


The judges were extremely engaged and intervened regularly throughout with a series of robust questions.  They started by challenging Mr Facenna as to whether the claim was now ‘academic’ given the UK had left the European Union.  Mr Facenna clarified that the purpose of the claim was to establish whether the conduct of the 2019 European Parliament elections had been unlawful under EU law, the European Convention on Human Rights and the Equality Act.  A declaration that those rights had been breached would vindicate those rights and give rise to a right to damages for the individual claimants, and therefore the claim was in no way academic under the relevant legal tests.


Mr Facenna took the Court to evidence from the Electoral Commission, correspondence between the UK Government and the EU Commission following the 2014 European Parliament elections, as well as to internal correspondence in the Cabinet Office.  This evidence demonstrated very real concerns about the potential for future disenfranchisement and also showed the steps being contemplated by the Government between 2014 and 2016 to remedy the problematic (and potentially discriminatory) aspects of the system, none of which were acted upon before the 2019 elections: the reform initiative was simply abandoned after the EU Referendum vote and not revived, even though it could have been, once it because obvious in March 2019 that the UK would be participating in the 2019 Elections.


Mr Facenna also highlighted statistics which demonstrated that a significant proportion of EU24 citizens who had registered to vote had not been permitted to do so in the 2019 elections.  Lewis LJ challenged the Claimants on this, on the basis that it may not be possible to infer that all those who had registered to vote but who did not return a UC1 form before the 7 May deadline had been ‘prevented’ from voting; some may have chosen not to vote, or may have chosen to vote in their member state of origin. In response, Mr Facenna referred the Court to press and social media reporting of the widespread problems faced by EU24 citizens who wanted to vote in the UK and could not.  He also pointed to the Electoral Commission’s report, which emphatically found that the deficiencies in the arrangements for the 2019 Elections had frustrated voters’ rights in a manner that was “unacceptable”.  Lewis LJ indicated however that the Court might be reluctant to rely on the Electoral Commission’s conclusions, noting that the Court was required to reach its own findings of fact.


The Court challenged Mr Facenna as to whether the Claimants’ submitted it was unlawful not to make preparations for the 2019 elections after the Article 50 notice was sent, given that meant the UK was due to leave the EU on 29 March 2019 and would therefore not be participating. Mr Facenna pointed out that the UK remained bound by EU law and as such was under a continuing duty to protect the rights of EU24 voters.  The Government had failed to remedy the defects in the system identified by the Electoral Commission and others and defiantly refused to acknowledge: the prospect that the European Parliament elections would go ahead in May because circumstances might change; and the fact that they did change when the UK’s membership of the EU was extended in March 2019. This defiance, combined with the unique features of the UK’s system, had led to breaches of EU law on election day.  Other countries’ systems did not include time-limited declaration forms or automatic striking off the register if those forms were not returned within a tight time scale. Mr Facenna showed the Court the evidence of local election officials raising their concerns with the Cabinet Office with increasing alarm in March and April 2019 and highlighted the difficulties posed by the very late publication of the poll order (8 April 2019) which left electoral officials very little time to publicise and to prepare, print and send out declaration forms to EU24 citizens to help them to exercise their right to vote (a process which would normally take place over six months).


In the afternoon session, Lewis LJ and Sir Michael Supperstone indicated they wanted specific submissions relating to each of the individual claimants, so Mr Facenna took them to their witness statements, emphasising that their circumstances aligned with the categories of those identified in the Electoral Commission’s reports as having faced barriers to participation arising from deficiencies in the UK system. The Court made many more interventions, questioning Mr Facenna on whether fault for the problems faced by the individual claimants may in fact have lay with local election officials (or even Royal Mail) rather than the UK Government. 


It was a challenging day in Court. The Government’s lead barrister, Clive Sheldon QC will make submissions today from 10.30 AM and the Claimants will have the opportunity for a short reply before the end of the day.


Bindmans will send out links again to those who registered with us previously. If you wish to view today’s hearing and have not already registered, please deniedmyvoteclaim@bindmans.com


It is very important that all those joining could please do so with their video and microphone switched off, in order to reduce interference.


In any event, we will provide a further summary of the second day later today or tomorrow.



 


Update 6

Nicolas Hatton

Jan. 23, 2021

#DeniedMyVote full hearing in the Divisional Court this coming week

On Tuesday 26th and Wednesday 27th January, the Divisional Court (a specially constituted High Court with Lord Justice Clive Lewis and Sir Michael Supperstone) will hear our #DeniedMyVote judicial review challenge. The two judges will be physically in the Royal Courts of Justice, but most of the submissions in the hearing will be made remotely, given Covid-19. 

We are waiting to see if the Court can livestream the proceedings on YouTube, but it is more likely that those who want to watch will need join using a Skype link that will be sent out each day. We recommend that you send your email address now to deniedmyvoteclaim@bindmans.com so our solicitors Bindmans can make sure you get the link if the Court decides to proceed in that way. Do use this address for any questions you have. We will also send out a further update once they hear from the Court.

Meanwhile, what can you expect at the hearing?

The hearing is likely to start at 10.00 AM each day and run until 4.30 PM with an hour’s break for lunch around 1.00 PM.

After some preliminaries, our lead barrister, Gerry Facenna QC, will open our case, taking the Court through the evidence of systemic, mass disenfranchisement that the Government was responsible for. There is a huge amount of material in front of the Court – over 5000 pages of documents -  including our surveys, statistics from  local authorities, our analysis of them, and the damning Electoral Commission reports. Our case is summarized in our ‘skeleton argument’ which you can access now here. Note the redactions (blanked out text) are there just to protect personal information about the individual co-claimants involved. We have asked the Government if we can publish their skeleton argument, but they have yet to say yes. If they consent, we will do that in another update.

Gerry will likely finish his main submissions on Tuesday. The Government’s QC, Clive Sheldon, will speak for most of Wednesday, and then Gerry will have an opportunity to reply. The hearing will end and the Judges will go away to deliberate what should happen. Their ruling should come in a month or two (occasionally it takes longer).

After each day of the hearing, we will publish a summary of what has been said. But do get in touch at deniedmyvoteclaim@bindmans.com if anything is unclear to you.

Last, thank you so much for all your support, without which we would not be here, ready to call the Government to account for #DeniedMyVote.

Update 5

Nicolas Hatton

Dec. 1, 2020

#DeniedMyVote - New Court, new hearing dates

Just as our legal team were completing their preparations, the hearing set for our judicial review on 8 and 9 December has unexpectedly been postponed.

 

We heard about this being considered on Friday and it happened formally yesterday. It seems that the Court has decided the case needs to be considered by a specially constituted ‘Divisional Court’ which has a Court of Appeal Lord or Lady Justice and a normal High Court Judge sitting together and this cannot happen next week.

 

The new hearing dates are 26th and 27th January 2021.

 

We don’t see this development as anything to worry about; it simply means the Court is taking the case very seriously and considers it is too important to be decided by a single High Court judge sitting alone.

 

Look out for another update just before the hearing with information on how you can watch the hearing remotely by Skype.

Update 4

Nicolas Hatton

Oct. 24, 2020

#DeniedMyVote - Getting ready for the (virtual) full hearing!

It’s been quite a wait thanks to Covid-19, but our #DeniedMyVote challenge is now headed for a full hearing in the Administrative Court on 8 and 9 December 2020.

 

The Court’s current default arrangements are to use Skype for Business rather than have an in-person hearing at Court and we have decided that would be best, both to ensure everyone is safe and that the prospects of the hearing being delayed are minimized, and to enable you and other supporters to tune in and watch the arguments (provided the Court agrees). We will check with the Court and circulate details of how to do that nearer to the hearing. It’s likely that journalists will also be virtually present to repost what’s said. Here is some information about Skype hearings. Our barristers have done several now.

 

Before the hearing: 

  • we will publish all our written submissions so you can see how the case will be argued;  

  • if the Government consents, we will public its submissions too; and  

  • we will keep you updated on developments and let you know if, for any reason, the hearing will not proceed (which is not very likely).

 

At the hearing: 

  • the parties’ representatives will introduce themselves;

  • the Judge will deal with any procedural applications that have not already been decided;

  • then our lead barrister, Gerry Facenna QC will open the case (supported by barristers Anneli Howard and Gayatri Sarathy along with our solicitors John Halford and Caroline Robinson and their colleagues Grace Benton and Verity Cannell) – this will take up most, possibly all of 8 December;

  • the Government’s lead barrister Clive Sheldon QC will then respond, supported by his team;

  • there will be no evidence from witnesses (that’s very unusual in judicial review), but the barristers will refer the judge to witness statements we and the Government’s witnesses have filed;

  • Gerry will then reply to the Government’s submissions; and  

  • the Judge will then thank everyone and close the hearing (though sometimes written submissions are sent in afterwards, with the Court’s permission).

 

The Judge will then decide the case. It’s likely that we will have a decision early in the new year on the main issues of principle – i.e. in January or February. If we succeed, there will be a further hearing about what should happen then in terms of remedies.

 

Our CrowdJustice fundraising campaign remains open so do contribute a little more if you can. Thank you for your ongoing support.

Update 3

Nicolas Hatton

June 26, 2020

What’s next for the #DeniedMyVote legal challenge?

This short update is about how the case is going and when we expect it to be heard. Thank you to all the supporters to this crowdfunder that have made taking it forward possible.

In the litigation, the last step our lawyers took was to file this detailed ‘Reply’ to the Government’s full written defense (a document called ‘Detailed Grounds of Resistance which unfortunately we cannot publish).  The Guardian discusses the Reply here, highlighting the fact that Ministers did not heed a series of warnings from their own officials about the need for timely preparations for the 2019 European Parliament Elections notwithstanding Brexit. The Reply also discusses the proposals that were made for reform of the disenfranchising UC1 declaration form system after its effects were exposed in 2014 – and the wholescale abandonment of work on those proposals after the 2016 Referendum. Very regrettably, EU citizens were dismissed as an unimportant minority (see paragraph ** of the Reply). That goes to the heart of this case. We are a minority, but our voting rights matter just as much as everyone else’s in a democracy.

Besides work on the Reply, the legal team have been pressing the Government to disclose further documents relevant to the case and preparing the Cost Capping Order application to protect us and the individual co-claimants as we go forward.

The Court has also been in touch to ask about hearing dates. It looks likely the hearing will happen in October or November this year, hopefully in open Court so the public can attend or at least with some form of streaming access if it takes place online (as many hearings do at present).

We will keep you posted on developments as they occur. We remain absolutely determined to securing a ruling that what happened last year was unlawful and setting a clear precedent to protect against mass discrimination of this kind occurring in the future. 

Update 2

Nicolas Hatton

June 3, 2020

You’ve done it! We will fight on!

You’ve done it! We will fight on.

Thank you so much for helping us reach our crowd funding target of £60,000 to challenge the discrimination and disenfranchisement of #DeniedMyVote.

Earlier in the week we honestly did not think we were going to make it, but your support, during these difficult times, has been incredible and very humbling.

This means that we are now in a position to proceed with the case – which is fantastic news.

I now want to take a moment to explain what the next steps are.

First, we are about to publish our ‘Reply’ to the Government’s case which discusses what went on behind closed doors in Whitehall when Civil Servants warned the Government about anticipated problems with the 2019 European Parliament Elections. Watch this space!

Secondly, we are inviting the Government – again – to meet and discuss whether there might be a fair and just way of settling the case. Our solicitors have written today to those representing the Government about this, suggesting a formal mediation process. They have, of course, made it clear that we will press on to the final Court hearing if this does not happen.

Thirdly, with the money raised, plus what we have held back in reserve, we will ask the Court to make a ‘cost capping order’ to protect the3million and the individual claimants from having to pay more Government legal costs than we can afford (if the case ultimately does not succeed). This is a really important step in any test case, where the Government will inevitably have far more resources to defend itself than those seeking to hold it to account. We will be making this application within the next two to three weeks and would expect to have an answer from the Court in one to two months.

We then expect a date for a full hearing to be set, which the Court has said may be late this year, but could be held back until next Spring. We will keep you fully updated once we know more details.

Lastly, you will see that the CrowdJustice target has been reset to a stretch target of £150,000. The reason for this is that the £60,000 will allow us to apply for the costs capping order, but is not enough to pay our lawyers for all their work until trial (and, so far, they have sent us bills for less than half of their normal fees). Money raised towards the stretch target will allow us to pay our lawyers more in the months coming, particularly when the work needed will be at its most intense, just before and during the hearing.

Thank you again for your generosity.


Nicolas Hatton, the3million

Update 1

Nicolas Hatton

May 27, 2020

A year has passed since #DeniedMyVote, but our case remains hugely important

A year has passed since #DeniedMyVote, but our case challenging what happened remains hugely important and needs your support

Our #DeniedMyVote judicial review challenging last year’s mass disenfranchisement continues in the Courts. We have been served with the Government’s 1200 pages of evidence, it has been carefully analysed by our legal team and they have produced a powerful Reply document which we will publish soon.

Meanwhile, we have asked our solicitor, John Halford, to summarise why the case remains so important – not only for EU citizens here in the UK like ourselves, but for everyone who values democracy and accountability.

To take the case all the way through to a full hearing, we still need your support. Please make a contribution now through CrowdJustice so we can fight on!


Nicolas Hatton

Co-founder, the3million

Our solicitor, John Halford, writes:

Though the weather was very similar, May 2019 had a very different feel to it than this May does: the news was filled not with the latest COVID-19 mortality statistics and Dominic Cummings’ creative childcare arrangements, but with the latest twists and turns of the Brexit negotiations and Parliament’s unresolved disagreements over the draft Withdrawal Agreement.

In the midst of all of this, the #DeniedMyVote scandal was a headline-grabbing surprise for many. Despite being registered to vote here and, in many cases, resident for decades, EU citizens were being turned away from polling stations in large numbers and told they could not vote in the European Parliament elections. Many had completed the special ‘UC1’ forms to certify the rather obvious fact that they intended to vote here but were told the forms had been lost or not processed in time. Other EU citizens had not heard of them. When they asked officials whether they could complete the special forms at the polling stations there and then, they were told this was not permitted. Adding insult to injury, some EU citizens were told that they ought to go away and vote in their ‘own countries’. Meanwhile, their British neighbours were permitted to vote unhindered. Many British citizens did face difficulty, however, if they attempted to vote here by post from other EU countries: significant numbers of ballot papers were either not sent out in the first place or lost when they were returned.

The disenfranchised EU citizens and their British counterparts had two other things in common. First, all of them were legally entitled to vote either in the EU country where they were resident or in the country of which they were nationals. This was a basic right written into the EU treaties and underpinned by human rights and anti-discrimination law. Secondly, organisations representing them had been raising concerns about how effective the 2019 European Parliament elections would be for some time because serious disenfranchisement problems had already arisen back in 2014.

What happened in 2014 did not go unnoticed at the time. It had prompted the Government to acknowledge that the UK's byzantine voting procedures were leading to significant numbers of people being prevented from voting and give assurances to the EU Commission and that they would be remedied in good time for the 2019 Elections.

But these promises were, it seems, unceremoniously abandoned in the immediate aftermath of the 2016 Referendum. The Government had simply assumed that the 2019 European Parliament elections would not be taking place. The unreliability of that assumption should have been plain when the draft Withdrawal Agreement was first rejected by Parliament in January 2019. Contingency planning for the 2019 European Parliament Elections should have begun long before then. But absolutely nothing was done to revive proposals for reforming the defective system. Worse still, the Government decided not to formally confirm that the 2019 European Parliament Elections would be taking place until 7 May - the very same day when EU citizens were legally required to return their special UC1 forms confirming they intended to vote here.

It is difficult to know just how many EU citizens were denied their right to vote last May, but the Electoral Commission’s special report into what happened suggests that there were well over a million who had registered to vote but did not exercise their rights. Local authority officers have recorded thousands of these people attempting to vote unsuccessfully. In short, #DeniedMyVote was the biggest electoral disenfranchisement in the UK in recent history, possibly ever.

What is happening now, a year on, and why does it matter?

To start with, EU citizens’ campaigning organisation the3million and six representative disenfranchised EU citizens have bravely taken on the Government in a judicial review that seeks a clear Court ruling on the legality of what happened. That is necessary because, incredibly, the Government maintains that the European Parliament Elections were run satisfactorily and that it was not responsible for anyone being disenfranchised. If the judicial review succeeds, it will show just how wrong and misplaced this complacent attitude is in a democracy. All elections matter, as do the rights of each and every voter.

Looking forward, the case is hugely important to EU citizens here in the UK at this critical time for broader reasons: if they can be stripped of the right to vote, despite it being embedded in law, what other rights might be taken away by the same means?

But the case is one which everyone committed to democracy should care about. Minorities are an easy target for disenfranchising action by governments. Once their rights are taken away without challenge, it is not long before our own are threatened. The COVID-19 pandemic has understandably led our Government to ask for our trust now more than any other time in a generation. That makes democratic accountability more important than at any other time. When voting rights are compromised, as they were so conspicuously a year ago, that should be regarded as a scandal and there should be accountability.

the3million’s judicial review claim is scheduled to be heard later this year. Right now, however the3million is urgently raising funds to enable that hearing to take place. Please make a contribution through CrowdJustice so they can fight for democracy - not only for EU citizens, but for all of us.

    There are no public comments on this case page.