A state may choose to make Citizens’ Rights of residence under the Withdrawal Agreement subject to the person concerned applying for residence status and a residence document. Where a state (such the UK) chooses to do so, in implementing that choice certain general difficulties may arise, see my post Residence Documents under the UK’s EU Withdrawal Agreement: Difficulties Arising. But what about the service standards that the state is subject to in the domestic implementation of the scheme? Under what constraints does it operate?
The conferral of residence status and the issue of residence document is subject to certain service standards, see Article 18 of the Withdrawal Agreement. Thus, where a state (such as the UK) adopts of procedure requiring an application for residence status and a residence document, it is subject to a number of conditions.
Applying for Residence Status
The purpose of the application procedure is to verify whether an applicant is entitled to residence rights under the Withdrawal Agreement. Where that is the case, an applicant has the right to be granted residence status and a document evidencing that status. The state has no residual discretion to refuse an application. A certificate of application for residence status must be issued immediately on application.
The deadline for submitting an application for residence status must be not less than six months from the end of the Brexit transition period (31 December 2020) for persons residing in the host state before the end of the Brexit transition period. The UK has gone for the minimum possible period for deadline, 30 June 2021, being six months from the end of the Brexit transition period. It has not chosen to specify a longer period, even though the Withdrawal Agreement permits it.
By the Withdrawal Agreement, the deadline for submitting an application for residence status and a residence document (in the UK, 30 June 2021) is to be extended automatically by one year where the EU has notified the UK, or the UK has notified the EU, that technical problems prevent the host state either from registering the application or from issuing the certificate of application. The host state must publish that notification and must provide appropriate public information for the persons concerned in good time.
Where the deadline for submitting the application is not respected by the persons concerned (i.e. where they miss the deadline) the competent authorities of the host state (in the UK, the Home Office) must assess all the circumstances and reasons for not respecting the deadline and allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline. Thus, a late application for residence status and a residence document is permitted in certain circumstances: it must be made within a reasonable period of time after the deadline and there must be reasonable grounds for missing the deadline.
Residence Rights before Application Deadline
Before the application deadline (in the UK, 30 June 2021), and its possible one year extension, all residence rights provided for in the Withdrawal Agreement apply to EU Citizens or UK Nationals, their respective family members, and other persons residing in the host state, in accordance with the conditions and subject to the restrictions on entry and residence set out in Article 20 of the Withdrawal Agreement. This means that, in that period prior to the deadline, those benefitting from Withdrawal Agreement residence rights may so benefit even though they have yet to apply for residence status and a residence document. That right is subject to the caveat specified in Article 20, where residence rights may be overridden on grounds such as conduct of abuse of rights.
Applications made by persons beginning residence after the end of the Brexit transition period
For those persons who have the right to commence residence in the host state under the Withdrawal Agreement after the end of the Brexit transition period (31 December 2020), the deadline for submitting an application is three months after their arrival or the general deadline (in the UK 30 June 2021, see above), whichever is later. Thus, where a self-employed Italian journalist resides in the UK before the end of the Brexit transition period and continues to do so thereafter, she may be joined by her Italian spouse after the end of the Brexit transition period, even though he has always resided in Italy so far. If he arrives in the UK in July 2021, he will have three months in which to make an application for a Withdrawal Agreement residence document (in the UK, this would be an application for Pre-settled Status).
The host state must ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided. The application forms must be short, simple, user friendly, and adapted to the context of the Withdrawal Agreement. Applications made by families at the same time must be considered together. These are yardsticks by which the application scheme, such as the UK’s EU Settlement Scheme (EUSS), may be judged.
Issuing Residence Documents
Residence Documents that evidence residence status under the Withdrawal Agreement, must be issued free of charge or for a charge not exceeding that imposed on citizens or nationals of the host state for the issuing of similar documents. A new residence document issued under the Withdrawal Agreement must include a statement that it has been issued in accordance with the Withdrawal Agreement.
What about People who already have Permanent Residence Documents?
For people who before the end of the Brexit transition period (31 December 2020) hold a valid permanent residence document issued under Article 19 or 20 of the free movement Directive (2004/38/EC) (i.e. an EU document certifying permanent residence or an EU permanent residence card), or who hold a valid domestic immigration document conferring a permanent right to reside in the host state (such as indefinite leave to remain (ILR) in the UK), on application, they have the right to exchange that document within the period for making residence status and document applications (in the UK 30 June 2021, see above) for a new Withdrawal Agreement residence document, after a verification of their identity, a criminality and security check, and confirmation of their ongoing residence. These new Withdrawal Agreement residence documents must be issued free of charge.
Criminality and Security Checks
Criminality and security checks may be carried out systematically on applicants, with the exclusive aim of verifying whether the restrictions (on grounds of conduct, abuse of rights, etc.) set out in Article 20 may be applicable. For that purpose, applicants may be required to declare past criminal convictions which appear in their criminal record in accordance with the law of the state of conviction at the time of the application.
Regarding previous criminal records, if it considers it essential, the host state may apply the procedure set out in Article 27(3) of the free movement Directive (2004/38/EC) (to request information concerning any previous police record) with respect to enquiries made to other states.
Administrative and Judicial Remedies
An applicant for residence status must have access to judicial and, where appropriate, administrative redress procedures in the host state against any decision refusing to grant residence status. The redress procedures must allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Among other things, such redress procedures must ensure that the decision is not disproportionate.
Pending a final decision by the competent authorities on any application for residence status, and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities (in the UK, the Home Office), all Citizens’ Rights for which provision is made in the Withdrawal Agreement apply to the applicant. This include the safeguards and right of appeal provisions found in Article 21 of the Agreement (which applies the standards found in the free movement Directive (2004/38/EC)) but subject to the limitations applying in respect of fraudulent or abusive applications set out in Article 20(4) of the Withdrawal Agreement (whereby a person may be removed pending final judgement where judicial redress has been sought). This is a very useful source of protection that allows a person access to rights (such as the right to take employment) pending judicial challenge to an adverse decision on residence status.
What happens in a State where Citizens’ Rights beneficiaries are not obliged to apply for Residence Status?
Where a host state has chosen not to require EU Citizens or UK Nationals, their family members, and other persons, residing in its territory in accordance with the residence conditions set out in the Withdrawal Agreement, to apply for the new residence status as a condition for legal residence, those eligible for residence rights have the right to receive, in accordance with the conditions set out in the free movement Directive (2004/38/EC), a residence document, which may be in a digital form, that includes a statement that it has been issued in accordance with the Withdrawal Agreement. Thus, in a country that does not require a person with Withdrawal Agreement residence rights to apply for residence status, that person nonetheless has the right to be issued with a Withdrawal Agreement residence document.