Introduction

Under the UK’s EU Withdrawal Agreement certain EU Citizens, UK Nationals, and family members and other persons enjoy rights of residence in a host state (the UK or an EU state, as the case maybe), see my posts The Residence Rights of EU Citizens and UK Nationals under the Withdrawal Agreement, The Residence Rights of Family Members who are EU Citizens or UK Nationals under the Withdrawal Agreement, The Residence Rights of Family Members who are not EU Citizens and not UK Nationals (so-called third country national family members) under the Withdrawal Agreement, and The Right of Permanent Residence under the UK’s EU Withdrawal Agreement.

A state that applies the Withdrawal Agreement need not require Citizens’ Rights beneficiaries to apply for a new residence status and obtain a residence document but many, including the UK, do so require. For anyone required to apply for a new status and obtain such a document it will be the local scheme (in the UK, Italy, France, etc.) that matters in the first instance. But what does the Withdrawal Agreement itself provide and is the UK scheme compatible?

Issuing Residence Documents under the Withdrawal Agreement

The host State (the UK or an EU state, as the case may be ) may require EU Citizens or UK Nationals, their respective family members and other persons, who reside in its territory in accordance with Withdrawal Agreement conditions (see above) to apply for a new residence status that confers the residence rights under the Withdrawal Agreement and apply for a document evidencing such status (which may be in a digital form), see Article 18 of the Withdrawal Agreement.

The Withdrawal Agreement and the UK’s EU Settlement Scheme (EUSS)

Where a host state invokes its right to insist that beneficiaries of Withdrawal Agreement Citizens’ Rights obtain a new residence status and document, the persons bound so to do are those who assert such rights on the basis that they fulfil the conditions for residence specified in the Withdrawal Agreement. Thus, at first blush, it is not sufficient to be an EU Citizen present in the UK to fall within the Withdrawal Agreement’s scope. One must be exercising rights of residence as a Worker, Self-employed person, family member, etc., (see above), where such rights survive the end of the Brexit transition period (31 December 2020) as the person continues to reside in the UK thereafter. While schemes such as the UK’s EU Settlement Scheme (EUSS) may be more generous in this respect (as an EU Citizen is not required to show she is economically active or that she fulfils self-sufficiency conditions, etc.), it is important to consider strictly who falls within the personal and material scope of the Withdrawal Agreement, and thus who enjoys its protection in the state concerned (e.g. the UK).

Where a person fulfils all the conditions of residence, say a self-employed Italian journalist who can prove she was residing and working in the UK before the end of the Brexit transition period and continues to do so thereafter, she falls within the scope of the Withdrawal Agreement and enjoys its protection.

But what of the French citizen of private means (i.e. a self-sufficient person) who lacks comprehensive sickness insurance and thus cannot satisfy a condition of residence but who was residing in the UK before the end of the Brexit transition period (31 December 2020) and continues to do so thereafter? Is he within the scope of the Agreement?

It is right to note that the host state has discretion to waive the conditions to be satisfied to secure residence rights, see Article 13(4). But what if it simply issues residence documentation (as the UK does) to the French citizen without testing the point? Does that person enjoy the protection of the Withdrawal Agreement? Does the UK’s want of curiosity and insistence on this point concerning Withdrawal Agreement residence conditions indicate the exercise of discretion in favour of every EU Citizen who applies, or is an individual assessment of an application for a residence document required to bring the French citizen within the scope and protection of the Agreement? It is hard to see how the UK has exercised discretion under the EUSS when it does not ask an applicant whether an EU Citizen (i) is self-sufficient and, (ii) has comprehensive sickness insurance, and ask them to prove the same before deciding to forgo insistence on the latter. True it is that some economically inactive EU Citizens granted EUSS status will be materially self-sufficient and possess comprehensive sickness insurance. But others will not.

Absent any evidence of the exercise of discretion by UK authorities (the Home Office), the population of those granted status under the EUSS may divided into two classes: (i) those who are able to prove they satisfy the residence conditions of the Withdrawal Agreement if asked, and (ii) those who cannot do so if asked.

As to the argument that the UK may be said to have exercised discretion on a collective basis to all those granted status under the EUSS, that is hard to sustain as certain classes of EUSS beneficiaries (e.g. Zambrano primary carers) are plainly outside the scope of the Withdrawal Agreement. Thus, it cannot be that all EUSS status holders are within the Withdrawal Agreement’s scope. Once that is appreciated, how is one to know if an individual with EUSS status is or is not within the scope of the Agreement, especially given that satisfaction of the Withdrawal Agreement’s residence conditions has not been tested? There is no clear answer.

Why does it matter?

As noted, under the Withdrawal Agreement a state may require EU Citizens or UK Nationals, their respective family members and other persons, who reside in its territory in accordance with Withdrawal Agreement conditions, to apply for a new residence status that confers the residence rights under the Withdrawal Agreement and apply for a document evidencing such status (which may be in a digital form). The UK does require EU Citizens, and their family members to apply under the EUSS for Settled Status (or Pre-settled Status). Where such status is granted, the residence document is in digital form, as the Withdrawal Agreement allows.

However, notwithstanding that Citizens’ Rights under the Withdrawal Agreement may be relied on by EU Citizens when dealing with UK authorities, and notwithstanding that such rights include rights of entry, residence, and exit, as well as protection from expulsion, the UK has chosen to operate a scheme whereby it confers permission (leave) under the EUSS.
The EUSS is really just a form of branding; what is conferred is permission (leave) to enter or remain under the Immigration Act 1971, where holders of such status are persons subject to immigration control.

Arguably, this is not consistent with the thrust of the Withdrawal Agreement provision for Citizens Rights, which creates rights that are directly effective (being largely analogous to equivalent directly effective rights under the free movement Directive (2004/38/EC), and which may be enforced against the host state (i.e. the UK) directly. A grant of leave to enter or remain (whether time-limited or indefinite) is controllable and may be manipulated by the Immigration Rules (executive policy made by the Home Secretary), the Immigration Act 1971, or possibly other UK legislation. Where a person has status under the EUSS but falls outside the scope of the Withdrawal Agreement, this may not matter, as the position is solely a matter for UK law. But where a person has status under the EUSS and has Withdrawal Agreement rights, the ability of UK authorities to alter her residence rights, access to social assistance, access to the labour market, or to determine the conditions for her expulsion, is governed by the Withdrawal Agreement; the latter providing a discrete code of immigration-related rights. For such a person every domestic exercise of jurisdiction over her as a person subject to immigration control must be tested against whether it is compatible with her Withdrawal Agreement rights in order to ascertain whether it is lawful.

Put another way, in granting leave to enter or remain under the EUSS to those who apply for a new residence status as Withdrawal Agreement residence rights beneficiaries, the UK has muddled them in with those granted leave under the EUSS but who are outside the scope of the Withdrawal Agreement, as well as all those granted leave to enter or remain on some other basis. In making policy for the latter two classes of persons subject to immigration control, the UK may (in)advertently infringe the rights of those protected by the Withdrawal Agreement. Maybe not today but at some point; it is inevitable.

It would have been better and more obviously compatible with the Withdrawal Agreement if the UK had recognised the Withdrawal Agreement’s residence rights as rights to reside conferred by treaty that override the domestic system of granting foreign nationals permission to reside at discretion. A ready template for such a regime existed to hand in the form of provision made for free movement rights of residence during the UK’s EU membership, see section 7 of the Immigration Act 1988 and the Immigration (European Economic Area) Regulations. 2016. With necessary adaptations, such as making it a requirement to apply for a residence document to secure rights, the latter scheme would have been far better suited to giving domestic effect to Withdrawal Agreement rights.