We have been granted permission for a full hearing - but need to raise a final £60,000 to protect against Government costs.

This fundraiser is now closed - please go to https://www.crowdjustice.com/case/discrimination-eu-citizens/ to help us make the final step! If we don't reach the target, you won't be charged.

But if we don't reach the target, we won't be able to proceed.

Here’s a short update on what’s happening with our judicial review of the mass disenfranchisement of UK-resident EU nationals that occurred in the 2019 European Parliament Elections. It remains a scandal the Government has yet to meaningfully acknowledge – despite the Electoral Commission findings that it was “it is unacceptable that people eligible to vote should be frustrated from doing so, and deeply regrettable that this was not acted on and resolved by the UK government” when problems first came to light and the Government handing of the election had damaged public confidence in democracy.

Our claim was issued back in July this year. After its delayed response to our letter threatening legal action, the Government asked the Court to make an Order allowing it to file its defence in January next year, rather than within the usual three weeks. We resisted and the application was refused. We received the Government’s defence a fortnight ago.

The Government is reluctant for us to publish anything it files in the case, but we are able to summarise our robust response to what it has said, which was filed with the Court a little earlier this week.

First, we argue our claim was brought well within the judicial review ‘promptly and within three months’ time limit and that, as we are challenging what the application of unlawful regulations and policies specifically in the 2019 Elections, there was no need to bring a challenge to the legislation that created the UC1 declaration form system 20 years ago, when it was first created.

Secondly, we say that the Government is squarely responsible for the regulations and policies: any that attempt to shift blame to disenfranchised voters or local authority officers who could do nothing to change the system is misconceived. We are greatly reinforced in this by the Electoral Commission’s two recent reports which state that the Government ought to have changed the law after disenfranchisement problems became apparent in 2014 – something it promised the EU Commission it would do.

Next, we say that the Government has no discretion under EU law to create a system that robs voting rights of all meaning. The voting systems are different across the EU, of course. But each one must be functional.

We have also explained why it would be wrong to say that, because both EU nationals and British Citizens abroad ended up disenfranchised, there is some sort of equality of misery, and so no unlawful discrimination.

Last, we have told the Court about how much disclosure of key decision documents and correspondence our lawyers have had so far from the Government – which is absolutely nothing. We believe this breaches Government guidance on being open and candid in judicial review cases, so that the Courts have the full facts in front of them.

The Court will now decide whether our claim should have permission to proceed to a full hearing, so everything that happened can then be properly examined out in the open. We hope to have a decision from the Court in the next few weeks and will keep you posted. Of course, we remain very open to agreeing a solution with the present Government (and any future one) that, as far as possible, will benefit everyone who was disenfranchised and recognise the seriousness of what happened. We made proposals for what can be done back in July, in our letter before claim.

In a related development, some of those who were disenfranchised have asked our solicitors, Bindmans LLP, to file protective claims seeking declarations their individual voting, non-discrimination and equality rights were breached and modest compensation for that. Their group claims are likely to be stayed until our test case is finally decided, but our solicitors have advised that those who want to protect their individual positions in this way should do so now if at all possible because the time limit for one element of such claims is likely to expire on 22 November 2019 at the latest. If you want more information about such claims, please provide your details here, no later than 15 November and we will pass this on to our solicitors. Note, we are not funding these claims in any way and they are separate from any crowdfunded work on the test case.  

There have been several positive and exciting developments since our last update six weeks ago. Here’s an update.

First, the Government applied for a long stay (adjournment) of the case until next January. We made submissions to the Court about why this was not appropriate and were pleased when the Judge, Mrs Justice Thornton, ordered that the case must proceed now.  The Government now has until 24 October to file its Acknowledgement of Service and Summary Grounds of Resistance (i.e. its initial written defence).

More good news – for us, not the Government - came last week from the Electoral Commission with the publication of its damning report into the conduct of the 2019 European Parliament Elections.

Such reports are rarely an exciting read, but this one fully endorses the position we have taken in the litigation. In particular:

• the Government committed itself to changing the law to deal with EU national disenfranchisement in 2014;
• it abandoned that work, which was a “missed… opportunity” to put things right; 
• legislative change was needed;
• the Government “had not properly contingency planned for these scheduled elections having to proceed”;
• “people who were entitled to vote and wanted to vote in the European Parliament elections in the UK were unable to do so” which is “unacceptable in a modern democracy”;
• the numbers affected are shocking – “four in five EU citizens (1.7 million) who had previously registered to vote did not submit an additional declaration in time to be registered to vote at the European Parliament elections in the UK”; and
• “public confidence” in democratic processes may well have been damaged by what happened.

As the Electoral Commission is an ‘interested party’ to our case, we also expect it to have plenty more to say about this in Court.

That said, we remain very open to proposals from the Government to settle our claim and hope it is thinking long and hard about its indefensible stance in the light of what the Electoral Commission has found.

Monique Hawkins
 the3million

The Electoral Commission’s damning verdict – key extracts

“In the weeks leading up to the May 2019 election, significant concerns were raised by and on behalf of some EU citizens in the UK, who said that they had experienced difficulty submitting their declaration before the legal deadline on 7 May 2019.

Ultimately, this meant that some 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. 

We have collated information from the concerns raised with us by EU citizens and others before polling day, on polling day itself and in the days thereafter, as well as data provided by EROs. We have published a more detailed analysis of this evidence separately. 

In summary, the feedback and comments we received from EU citizens, their families and elected representatives highlighted three main areas of concern:

• that they had not been aware of the need to complete an additional declaration as well as an application to register to vote

• that they had not been able to submit a declaration in time before the deadline set in law
  
  
• that they thought they had submitted a declaration in time, but were still not included on the electoral register and were not able to vote

It is not possible to conclusively verify the numerical estimates of those affected. This is because there are no comprehensive data sources available to us or any other body that would tell us how many voters wanted to register and were unable to do so, or tell us how many attended a polling station on 23 May but were not able to be issued with a ballot paper. 

Data provided by Electoral Registration Officers (EROs) after the election shows that in the weeks leading up to the deadline more than 400,000 EU citizens submitted a declaration that was received and processed. This meant that they were able to vote in the UK at the 2019 European Parliament elections.

In total, around 450,000 were registered to vote in these European Parliament elections as a result of returning a declaration (UC1 form). This represents just over a fifth of citizens of other EU Member States who had been included in the May 2019 local government register.

Approximately four in five EU citizens (1.7 million) who had previously registered to vote did not submit an additional declaration in time to be registered to vote at the European Parliament elections in the UK.

Some of these people may have wanted to vote in the UK but were not able to submit the declaration in time before the deadline, although we have no data that allows us to assess how many were in this position.

Equally, it is not possible to assess how many of these people opted to vote in the EU Member State where they held citizenship, or actively decided not to vote in the election at all. 

This was not the first time that these types of issues had arisen at European Parliamentary elections in the UK. Our report on the 2014 European Parliament elections highlighted that citizens of other EU member states had raised similar concerns about the registration and declaration process for those elections.

We said then that the UK Government needed to work with the Commission, electoral administrators, and groups representing EU citizens to find solutions in good time before the next European Parliamentary elections. 

Any changes to the process would have required the Government to introduce legislation, but the law was not changed ahead of the 2019 election.

The UK Government indicated in February 2015 that it planned further discussions with us and other stakeholders on the registration process for EU citizens, but no such discussions were held.

Immediately following the June 2015 UK Parliamentary general election the Government introduced legislation to hold a referendum on the UK’s membership of the EU, and the result of the June 2016 referendum meant that it was widely expected that European Parliamentary elections would no longer take place in the UK.

The difficulties that we had identified in 2014 were exacerbated by the circumstances leading up to the 2019 European Parliamentary elections. Given that the UK had been expected to leave the European Union on 29 March 2019, the UK Government had made clear its position that the UK would not be required to take part in the 2019 European Parliamentary elections.

In the event, that proved to be wrong, and government had not properly contingency planned for these scheduled elections having to proceed.

One direct and harmful impact was that EROs were not in a position to send declaration forms to EU citizens who were already registered as local government electors after the annual electoral registration canvass in December 2018, as they had usually done before European Parliamentary elections in previous years.

On 29 March 2019, we wrote to Cabinet Minister David Lidington highlighting the ongoing uncertainty about whether the European Parliamentary elections would be held in the UK, and on the need for assurances to Returning Officers that they would be reimbursed for any reasonable spending on contingency preparations.

It was not until 8 April that the Government made the legislation confirming that polling day for the European Parliamentary elections in the UK would be 23 May 2019. EROs were then in a position to commit resources to begin sending declaration forms to EU citizens who were already registered as local government electors, including using email where they held addresses.

Many EROs faced significant logistical challenges, however, given that electoral administrators and their printing and despatch suppliers in many areas of England and across Northern Ireland were also delivering the scheduled early May local government elections.

The experience of EU citizens at the May 2019 European Parliamentary elections in the UK illustrates the impact of making significant decisions about elections without thinking through all the possible contingencies and making sure the interests of voters are always put first.

By not taking steps to proactively identify alternative solutions soon after the 2014 election, and then simply assuming there was no chance of European elections happening again, the UK Government missed the opportunity to legislate for improvements to the process for future elections.

Moreover, while the political circumstances leading up to the 2019 elections were exceptional, the continued uncertainty about whether the election would go ahead meant that EU citizens received less timely information about what they needed to do to be able to vote than in previous years. 

More widely, our research with the public suggests that the experience of EU citizens may have had an impact on overall levels of confidence in the 2019 European Parliamentary elections in the UK. Public confidence could again be harmed if significant decisions about whether or how elections will take place are made so close to polling day in future.

Effective electoral administration that supports voter confidence depends on good planning and management by EROs and ROs. While they will always need to be prepared to respond to unanticipated political developments – such as an early UK Parliamentary general election, for example – governments should ensure that their decisions support effective contingency planning.

We will continue to strongly emphasise the need for governments to ensure there is clarity about the legal framework for elections at least six months before EROs and ROs need to deliver statutory processes.”

I want to update you on our progress in challenging the government’s denial of the rights of hundreds of thousands of EU citizens to vote in the 2019 European Parliament Elections. 

On 14 August, more than a month after we sent our ‘letter before claim’ to the government, they finally responded.  We had hoped to share a copy of their letter with you, but the government’s lawyers have refused to allow that.  What we can confirm is they have denied liability for any wrongdoing arising from the UC1/EC6 Declaration Form system and indicated that they intend to defend our claim. So we must fight on!

To that end, we have filed our detailed legal arguments (‘the Grounds for Judicial Review’) and a compelling file of evidence at court to support our claim that the system operated and maintained by the UK government for the conduct of the 2019 elections was unlawful. This includes eight witness statements and hundreds of pages of survey and local authority data. The3million’s analysis of this data, set out in a statement from the3million’s research associate, indicates that over 75% of registered EU24 citizens were struck from the electoral register prepared for the 2019 European Parliament elections.  In total, the Court files run to 1829 pages.

Our Grounds set out significant admissions the government made in its response to our letter before claim, including that: “there may have been some EU citizens who were not able to vote in the 2019 Election when they would have wished to do so”.

In other words, the Government does now admit that EU citizens were disenfranchised, but they do not consider this to be unlawful or discriminatory.  We know otherwise and we are confident our position will be vindicated in Court.

What next?

The Government now has 21 days to file its written response to our legal arguments in a document called the ‘summary grounds of defence’.  After that, we will have the opportunity to file further legal arguments in response and then a judge will decide whether our case should be granted permission to proceed. 

We will continue to keep you updated as our case progresses. Thank you for continuing to support us.

Please tell your friends and family about our campaign!

Monique on behalf of the3million

While you are here: 

the3million is a nonprofit organisation run by dedicated activists fighting for EU citizens' rights. 

They are holding the government to account 24 hours a day, 7 days a week, 365 days a year. They take no breaks. 

Please support them here:

https://the3million.allwelcome.org/en/donations/campaign/29/donate/ 

Follow @the3million on Twitter

The Government is still considering the letter before claim that we sent threatening legal action. Its response is late (it should have replied over a week ago), but it has asked for more time, until 9 August, to reply properly. 

Judicial review claims like this one are subject to a time limit of ‘prompt and within three months’. The Government may want to argue the claim is not being brought promptly (even though we are well within three months of the European Parliamentary Elections). So we and our legal team have decided the safest thing is to issue the claim ‘protectively’ by filing a claim form identifying the individuals involved and the3million as co-claimants and appending the correspondence exchanged with the Government so far. This will stop the time limit clock running. The Government has agreed this course would be sensible. We therefore filed the claim ‘protectively’ in this way on Friday 2nd August. 

We will now continue to prepare our evidence and wait to hear from the Government on 9 August. Unless it has a good answer to the claim, or concedes it acted unlawfully and offers an acceptable form of settlement (both of which are possible, but unlikely), we will file our full legal arguments and all evidence by 19 August and the case will progress from there.

Our solicitor John Halford, on his blog entry, answers the following question "But does this really matter now? We have a new Prime Minister committed to a ‘do or die’ Brexit policy. The European Parliament elections this May could be the UK’s last for a generation. Aren’t they now old news?"

Thank you all SO much for your support. We have reached our initial £65,000 target which means we can go ahead and issue the judicial review claim.

We are confident the Court will grant permission for the judicial review to proceed, so have set a stretch target based on our working estimate of costs for the full hearing. We will revisit this when the Court considers our application for a costs cap.

The Government’s response to our letter before claim was due yesterday. So far it has not responded substantively. There may well be a hold up because the new Secretary of State has yet to be briefed. Meanwhile, we and our lawyers have been hard at work building the case so that it is ready to be issued well before the Court deadline. We now have gathered and analysed returning officer data relating to over 25% of EU citizens who were registered to vote (of whom less than a quarter remained allowed to vote on 23 May, thanks to the UK’s UC1/EC6 declaration form system). Witness statements have been prepared for a number of potential co-claimants and witnesses all of whom are directly affected individuals who were denied the right to vote and the grounds for judicial review are being prepared. We will, of course, publish the key Court papers once they are finalised.

Thank you again for making all of this possible.

Q and A with our solicitor, John Halford              

The support for the3million’s planned legal challenge so far has been remarkable. Over 900 people responded to the first survey seeking details of what happened. Over 200 have responded to the second survey (and if you were denied your vote, but have not completed it yet, please do so). There were 1,573 pledges to the crowdfunding campaign for the first phase of work and, as I write this 1,720 people have pledged towards the phase 2 crowdfunding campaign. There has been great coverage from the Guardian and Politics.co.uk. The £65,000 fundraising target is in sight. With your and others’ continuing support, that target will be reached and the judicial review claim can be issued. the 3million research team and legal teams are working hard to build the case in the meantime.

So, what next? Now is a good time to break that question down a little and say more about the legal process and strategy. 

There’s one other point to make before I do that though, which is that there is no doubt this is an important case. It is not only about the systemic stripping away of rights by a flawed system the Government promised to change – a promise it then reneged on. It is not only about seeking an authoritative ruling from the Courts that such a system is as unlawful as it is outrageous, and that voting rights are to be cherished and protected. It is also about demonstrating that a group in society cannot lawfully be treated as second class citizens who need to seek official permission to enjoy the same rights as everyone else. It is a case about everyone’s rights being equally valued and equally capable of being exercised.

These are basic democratic principles. They should not need to be defended, but what happened on 23 May shows that they do.

Thank you for your help in making that possible. 

John Halford

Bindmans LLP

Q1: Now the letter before claim has gone to the Government, what happens next? 

A: Under the judicial review pre action protocol, the Government has until 26 July 2019 to respond to the arguments set out in that letter (also summarised here). We have asked it to acknowledge what happened, accept it was unlawful and consider taking remedial steps.

Q2: What will the Government say? 

A: It ought to accept the system operated unlawfully and disenfranchised large numbers of people. But the position it has taken so far (for instance, in Parliament) is that no inquiry into the scandal is needed, it has done nothing wrong and the system was actually required by EU law. It may well maintain that line, even though it is very difficult to reconcile with the undertaking it gave to change the system after people were disenfranchised in 2014. Taking the legal challenge forward will then be the only way to secure accountability, which is why your support is so important. 

Q3: What will the legal challenge involve, then? 

A: The legal challenge will be a judicial review. This is the process for challenging public body decision-making that cannot be appealed. A judicial review claim can be brought by an organisation - like the3million – with a special interest in the issued being litigated, or affected individuals.

Many people have let the3million know that they are interested in being part of the legal challenge. We are in the process of contacting those whose circumstances best represent others falling into the four categories of disenfranchised people identified in the letter before claim as, ideally, the case will be brought both by the3million and a handful of representative individuals so the Court can get a sense of how people were directly affected. We may want to put in evidence from others too as the case progresses.

Q4: How will you build and argue the case? 

A: The evidence will be combined with witness statements about the research the3million has done and describing how the UC1/EC6 Declaration Form system works and the history of the problems it has caused. The legal arguments will set out in another document, called the ‘Grounds of Claim’.

All of this will be sent to the Government and to the Court, which will be asked for permission for the case to proceed. If the Court agrees, it will then decide whether to cap costs. Further evidence and written arguments will be exchanged and then there will be a hearing towards the end of the year or early next year.

Q5: What happens after the hearing? 

A: After the hearing, the Court will give a judgement and, if the case succeeds, decide what remedies to grant to the 3million and any individual claimants. The loss of rights by large numbers of people would be marked by the Court making a declaration and giving a judgment exposing the Declaration Form system as one that unlawfully takes away fundamental rights, that had that effect on a large scale and asking the Court to rule that to have been unlawful. That could have implications for other elections in the UK, but perhaps more importantly for other rights that UK-resident EU nationals currently have.

The law also allows compensation to be claimed by individuals for the consequences of their voting rights being rendered ineffective, including serious injury to feelings, but the UK courts have not set a figure on this in past cases. If the Court decides modest compensation is appropriate, that is likely to be dealt with at a separate hearing, or settled.

Q6: My vote was denied, so can I bring a legal case myself? 

A: In principle, yes. We will prepare and publish some guidance on this. We are likely to recommend that anyone who wants to do this issues a claim and then asks the Court to put it on hold while the 3million’s test case is dealt with.

Q7: Will the Government re-run the 2019 European Parliamentary Elections if it accepts what happened was unlawful? 

A: No. To challenge the results of the poll, there would have needed to be enough evidence to file electoral petitions shortly after the poll on the basis the result in every region would have been different had disenfranchised people been permitted to vote. That was not realistic.

Q8: What is the EU doing about all this? 

A: The Guardian has reported that the European Commission is looking into what happened, but we don’t have details of this and the investigation would not be public. If the UK leaves the EU, any such investigation will come to an end. We don’t presently see this as a meaningful alternative to the legal action we hope to take.

Q9: What about the Electoral Commission? 

A: The Electoral Commission has publicly criticised the Government’s actions - up to a point. But it has not taken a position on whether denial of the right to vote was unlawful and it has no powers to hold a public inquiry, so is likely to produce a short report on the 2019 European Parliamentary Elections which identifies some problems, as it did in 2014. We think people should complain to the Electoral Commission using the form the3million has created so it has a sense of the nature and scale of the problem, but its report will not be a substitute for an authoritative Court ruling.

Q10: Can I do more to help? 

A: Yes! Please do donate, or donate again, if you can spare the money. And if you were denied your right to vote, please complain and fill in the second survey if you have not done so already.

Article by Ian Dunt of politics.co.uk: A reply to a letter from the3million to the Dutch Interior Ministry shows: “British authorities barely even bothered to use or transmit the data that was apparently so important it justified disenfranchising them.” “Hopefully [this legal case will] succeed and that democratic crime scene can keep being investigated.”

See here for a summary of the legal arguments, and here for the letter before claim, in full, that was sent to the Government on 12th July.

As reported by the Guardian, the Letter Before Claim has been sent.  We have just two weeks now to reach our target to take it to the Courts, can you pledge a little more and share widely?