My preliminary thoughts on why UK's Referendum Bill franchise infringes Art 18 TFEU

This is just a short development of my thoughts regarding why UK's Referendum Bill franchise infringes Art 18 TFEU. For an analysis of the voting franchise and the difficult issues it raise, see Prof Jo Shaw's excellent piece here. I will develop lengthier arguments in view of the debate I hope this will spur. For now, this is a broad brushstroke presentation of the argument:

Art 18 TFEU prohibits any discrimination on grounds of nationality, and that prohibition of discrimination applies within the scope of application of the Treaties and without prejudice to any special provisions contained therein. As recently stressed by the CJEU in Dano (C-333/13, EU:C:2014:2358) “Every Union citizen may therefore rely on the prohibition of discrimination on grounds of nationality laid down in Article 18 TFEU in all situations falling within the scope ratione materiae of EU law. These situations include those relating to the exercise of the right to move and reside within the territory of the Member States conferred by point (a) of the first subparagraph of Article 20(2) TFEU and Article 21 TFEU”… “the principle of non-discrimination, laid down generally in Article 18 TFEU, is given more specific expression in … Directive 2004/38 in relation to Union citizens who … exercise their right to move and reside within the territory of the Member States” (59 & 61).

I will limit my points to non-UK EU citizens that have resided in the UK for more than five years, which have acquired permanent residency under Art 16 Dir 2004/38 (thought the same arguments apply functionally to the rest of non-UK EU citizens residing in the UK, at least those who are not an unreasonable burden on the social assistance system). 

Those non-UK residents will (likely) see their permanent residency right affected (if not taken away) should the UK pull out (barring a general grandfathering of those rights). While some non-UK EU citizens are given right to vote in the referendum (Irish, Maltese, Cypriots) regardless of any other condition linked to their right to residence under Art 16 Dir 2004/38 or otherwise; others (rest of nationalities) do not get the right to vote on an issue that affects the continuity of the rights acquired under Dir 2004/38—and, ultimately, Arts 20-21 TFEU, which clearly engages Art 18 TFEU. This is discrimination based on nationality and, consequently, prohibited by Art 18 TFEU. Moreover, given the relevance of permanent residence rights for the development of basic human rights as recognised in the EU Charter (such as private and family life, Art 7; or property, Art 17, just to mention the most likely to be affected), this sort of discrimination is unacceptable.

Of course, the only valid argument against this is that Art 50(1) TEU determines that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements”. However, even then, it seems contrary to UK constitutional principles to force non-UK citizens to apply for citizenship (if they can) in order to have their basic fundamental rights upheld. Hence, this is not only politically and socially unacceptable, but legally flawed and open to challenge before the Court of Justice of the European Union.