Applications for residence status and for a residence document during the Brexit transition period ending on 31 December 2020 have a peculiar status and create certain effects after the end of that period. 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. There are also question as to how to prove entitlement to residence status and residence documents, see my post Residence Documents under the UK’s EU Withdrawal Agreement: Proving Entitlement. But what of the status of decisions made and documents issued during the Brexit transition period?
Residence Documents issued during the Brexit transition period (to 31 December 2020)
During the transition period, a host state (the UK or an EU state, as the case may be) may allow applications for a residence status or residence document to be made voluntarily from the date of entry into force of the UK’s EU Withdrawal Agreement (see Article 19) on 1 February 2020. Thus, from that date until the end of the Brexit transition period on 31 December 2020 residence status may be conferred and residence documents may be issued pursuant to the Withdrawal Agreement. A state’s ability to do so extends both to situations where they will require people to apply for a new residence status after the end of the Brexit transition period and to those situations where they will not but will provides such documents evidencing status on voluntary application. During the Brexit transition period itself, in either situation, applications are voluntary and need not be made. During that period, EU free movement law under the Treaty of the Functioning of the European Union (TFEU) continues to apply: A German banker resident in the UK would enjoy an EU right to reside as a Worker and a self-employed Italian journalist so resident would enjoy an EU right of self-establishment in the UK.
The authority to issue Withdrawal Agreement residence documents does not appear to extend to any documents issued prior to the entry into force of the Withdrawal Agreement, raising the issue of whether documents issued prior to that date (1 February 2020) are protected by the Withdrawal Agreement: While the document-issuing state and the person issued with such a document may both have a strong interest in saying that it does, the answer is not immediately obvious, nor is the matter free from doubt. There is little doubt that such a document would confer lawful residence in the issuing state. But is it protected by the Withdrawal Agreement? Arguably not.
Any decisions to accept or refuse applications for residence documents during the Brexit transition period must be taken in accordance with the requirements specified in the Agreement (see my posts referred to above for details).
In circumstances where a state intends to insist on people applying for residence status and a residence document after the end of the Brexit transition period (31 December 2020), a decision to grant or refuse an application has no effect until after the end of the Brexit transition period. However, if such an application is accepted before the end of the Brexit transition period, the host state is not allowed to withdraw the decision granting the residence status before the end of the Brexit transition period on any grounds other than those set out in the free movement Directive (2004/38/EC): public policy, public security, public health, or abuse of rights.
Where an application is refused before the end of the Brexit transition period, the applicant may apply again at any time before the expiry of the grace period (in the UK from 1 January 2021 to 30 June 2020), though late applications may be accepted at discretion (see my post Residence Documents under the UK’s EU Withdrawal Agreement: Service Standards).
In addition, judicial and any administrative remedies must be available from the date of any decision to refuse an application, see my post Residence Documents under the UK’s EU Withdrawal Agreement: Service Standards for more information.