Introduction 

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. In addition, certain service standards apply, see my post Residence Documents under the UK’s EU Withdrawal Agreement: Service Standards. 

 But what about proving entitlement to Residence Documents? What are the requirements? In what follows the concern is with what the Withdrawal Agreement requires. The requirements of individual schemes in particular countries (such as the EU Settlement Scheme (EUSS) in the UK) are what matters when applying for residence status in the country in question. The Withdrawal Agreement sets the legal standard but local schemes may be more generous. How is entitlement to Residence Documents proved under the Withdrawal Agreement? 

Proving Entitlement to Residence Documents

Identity Documents 

An applicant must verify their identity through presentation of a valid passport or national ID card for EU Citizens and UK Nationals, and through presentation of a valid passport for their respective family members and other persons who are not EU Citizens or UK Nationals, see Article 18 of the Withdrawal Agreement.  

The acceptance of such documents may not be made conditional upon any criteria other than that of the document’s validity. Where the document is retained by the competent authorities of the host state (e.g. in the UK, the Home Office) while the application is pending, the host state shall return the document on request without delay, before the decision on the application has been taken.

Other documents 

Supporting documents other than identity documents (such as civil status documents) may be submitted as copies rather than originals. Original supporting documents may be required only in specific cases where there is a reasonable doubt as to the authenticity of the supporting documents submitted.  

General liberal approach 

The competent authorities of the host state (in the UK, the Home Office) must help the applicants to prove their eligibility and to avoid any errors or omissions in their applications. They must give applicants the opportunity to furnish supplementary evidence and to correct any deficiencies, errors or omissions.  

EU Citizens and UK Nationals exercising Residence Rights at the end of the Brexit transition period (31 December 2020)

As regards EU Citizens and UK Nationals exercising Residence Rights at the end of the Brexit transition period (31 December 2020), the host state may only require EU Citizens and UK Nationals to present, in addition to identity documents (passport or ID cards, see above), the following supporting documents (being the same as those required in equivalent circumstances under the free movement Directive (2004/38/EC):

• Where residing as a Worker or Self-employed person – confirmation of engagement from the employer or a certificate of employment, or proof of self‐employment. A German banker residing in the UK would need to provide documents such as the contract of employment and salary slips; a self-employed Italian journalist residing in the UK would need to show evidence such as contracts for work commissioned, supplied and paid for (or preparatory steps for the same)
•  Where residing as an economically inactive (Self-sufficient) person – evidence that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host state during their period of residence and that they have comprehensive sickness insurance cover in the host state
• Where residing as a Student – proof of enrolment at an educational establishment accredited or financed by the host state on the basis of its legislation or administrative practice, proof of comprehensive sickness insurance cover, and a declaration or equivalent means of proof, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host state during their period of residence (NB The host state may not require such declarations to refer to any specific amount of resources)

States may not lay down a fixed amount that they regard as ‘sufficient resources’ but must take into account the personal situation of the person concerned. In all cases this amount must not be higher than the threshold below which nationals of the host state become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host state.

Family Members of Residence Rights holders (including ‘extended’ family members) who have already resided in the host state at the end of the Brexit transition period (31 December 2020) 

As regards family members of Residence Rights holders (including ‘extended’ family members) who have already resided in the host state at the end of the Brexit transition period (31 December 2020),  the host state may only require them to present, in addition to identity documents (passport or ID cards, see above), the following supporting documents (being the same as those required in equivalent circumstances under the free movement Directive (2004/38/EC):

• a document attesting to the existence of a family relationship or registered partnership
• the registration certificate or, in the absence of a registration system, any other proof that the EU Citizen or the UK National with whom they reside actually resides in the host state
• for direct descendants (children, grandchildren, etc.) who are under the age of 21 or who are dependants and dependent direct relatives in the ascending line (parents, grandparents, etc.), and for those of the spouse or registered partner, documentary evidence that these conditions concerning age or dependence are fulfilled
• as regards extended family members (unmarried partners, aunts, uncles, nieces, nephews, etc.) – a document issued by the relevant authority in the host state in accordance with the conditions specified for such persons to be treated as family members

States may not lay down a fixed amount which they regard as ‘sufficient resources’ but must take into account the personal situation of the person concerned. In all cases this amount must not be higher than the threshold below which nationals of the host state become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host state.

Family Members of Residence Rights holders who have not resided in the host state at the end of the Brexit transition period (31 December 2020)

As regards family members of Residence Rights holders who have not resided in the host state at the end of the Brexit transition period (31 December 2020), the host state may only require them to present, in addition to identity documents (passport or ID cards, see above), the following supporting documents (being the same as those required in equivalent circumstances under the free movement Directive (2004/38/EC):

• a document attesting to the existence of a family relationship or of a registered partnership
• the registration certificate or, in the absence of a registration system, any other proof of residence in the host state of the EU Citizen or of the UK Nationals whom they are joining in the host state
• for spouses or registered partners, a document attesting to the existence of a family relationship or a registered partnership before the end of the Brexit transition period (31 December 2020)
• for direct descendants (children, grandchildren, etc.) who are under the age of 21 or who are dependants and dependent direct relatives in the ascending line (parents, grandparents, etc.) and those of the spouse or registered partner, documentary evidence that they were related to EU Citizens or UK Nationals before the end of the Brexit transition period  (31 December 2020) and documentary evidence that the conditions  of age or dependence are fulfilled
• for unmarried partners – proof that a durable relationship with EU Citizens or UK Nationals existed before the end of the Brexit transition period (31 December 2020 and continues to exist thereafter

Other cases 

In all other cases (e.g. children born after the end of the Brexit transition period (31 December 2020), the host state must not require applicants to present supporting documents that go beyond what is strictly necessary and proportionate to provide evidence that the conditions relating to the right of residence under the Withdrawal Agreement have been fulfilled.