Parliamentary memo: Is EUSS status evidence of having Withdrawal Agreement rights?
September 2024
The problem
1) UK authorities have been arguing in court that EUSS status is not in itself proof that someone has Withdrawal Agreement rights. This means that none of the 6 million+ people with status under the EUSS can know whether or not they are covered by the Agreement.
2) This is deeply problematic; people were urged to apply to the EUSS, under the impression that doing so would safeguard their WA rights. The goal of certainty was the reason given for instituting the EUSS as a compulsory, constitutive scheme. The UK could have opted for a declaratory scheme, which would have avoided disentitling people overnight, as a result of which people might have had to demonstrate that they met the conditions in the WA at subsequent points (along the lines of EU free movement law), for example when seeking to establish eligibility for welfare benefits. Instead, the UK government opted for a constitutive scheme in which having made an application for a new status was a necessary component of the right to remain. When asked why the government was adopting the EUSS, then Home Secretary, Sajid Javid responded “In a word, Windrush”. While concerns were raised that the scheme could be exclusionary, Javid said the EUSS was necessary to ensure people had documentary evidence of their rights:
“the Windrush generation have always, quite correctly, had their rights. The problem was by doing it only through a declaratory system it meant that there was no documentation to prove that, which many years later became a problem.”[1]
3) In short, the EUSS was conceived as an implementation of the Withdrawal Agreement option for a constitutive scheme (Article 18) to give effect to residence rights (Articles 13 and 15), and having EUSS status was thought to be evidence that someone was residing on the basis of the Withdrawal Agreement, and to be entitled to the rights that entails.
4) But now, in order to avoid paying some benefits to some people with pre-settled status for a short period of time, the UK authorities have been arguing that having pre-settled status does not mean someone is residing on the basis of the Withdrawal Agreement. This is perhaps a more swingeing argument than the government intends, since it severs the links between the EUSS and the WA for everybody, including people with settled status. Their rights will become more perilous as we get further from the point of Brexit. Unless action is taken now, then in years and decades to come, hundreds of thousands of people will face a desperate struggle to prove that they were ever covered by the Withdrawal Agreement.
Why has this emerged?
5) There are three underlying drivers for this problem:
i. The EUSS and the Withdrawal Agreement contain different conditions
ii. The EUSS introduces, as permitted by the WA, a constitutive scheme, which is different to pre-Brexit schemes, and has legal consequences that neither the EU nor the UK government have properly addressed
iii. The UK government wants to rely on its pre-Brexit prerogative to tolerate the presence of some EU nationals with PSS without according them equal treatment rights to benefits.
i. The divergence between the EUSS and the WA
6) The first thing to understand is that the EUSS and the Withdrawal Agreement have different conditions for accessing residence rights. The Withdrawal Agreement permits the UK to require EU nationals to meet certain conditions before becoming entitled to ‘temporary residence’ (Article 13), or ‘permanent residence’ (Article 15). These are the traditional ‘right to reside’ conditions in EU free movement law, that applied before Brexit, but were typically used not to deny residence rights, but to deny equal treatment rights with regard to means tested benefits. The focus is on economic status – being in work, or being the family member of a worker, being self-sufficient (which the Upper Tribunal has interpreted as commanding a substantial degree of resources at the outset), or being a student (with limited equal treatment rights). Under the old rules, someone then had to show they were continually exercising such a right to reside for five years before getting permanent residence rights.
7) These rules can be cumbersome, and in individual pre-Brexit benefit cases involved huge amounts of paperwork, investigations, evidence and litigation. And they also were highly exclusionary, since it is not possible for a child to demonstrate a right to reside in their own right, for instance, women with broken work histories due to caring responsibilities repeatedly found their ‘five year clock’ restarted.
8) Having adopted a new constitutive scheme, requiring millions of people to apply for a new status, and having opted for the soonest possible deadline (30 June 2021), it was a matter of administrative necessity for the UK to forego imposing these conditions of eligibility. It is also possible that the government wanted to avoid a situation in which hundreds of thousands of EU nationals (many of them children) who would struggle to meet the conditions (and whose presence was previously ‘tolerated’ by the UK) would be seen to be kicked out of the UK post-Brexit.
9) The EUSS instead focuses on simple residence. The rule of thumb is that for EU nationals who were resident prior to, and at, the end of the Brexit transition period, if they could demonstrate that they had been resident for five or more years at the time of application they would be entitled to ‘settled status’; if they could only evidence residence for a shorter period they would be entitled to ‘pre-settled status’, with the opportunity to upgrade.
10) Under the EUSS, pre-settled status is the equivalent of WA Article 13 ‘temporary residence’; settled status is the equivalent of WA Article 15 ‘permanent residence’.
ii. The introduction of a constitutive scheme
11) The UK opted to introduce a new, constitutive residence scheme for EU nationals, in which you have to make an application to have the status – meeting underlying conditions is not enough. This meant that it would be possible for EU nationals residing and working in the UK for decades, to completely lose all hypothetically accrued rights if they failed to apply in time. This has been confirmed in relation to charges for healthcare, where children who had not had an application made for them before the deadline have been charged access to NHS services, even when they subsequently acquire EUSS status at a later date. The flipside of a scheme where you have to have the status to have the rights, is that when you have the status, you have the rights. It, in itself, constitutes the rights.
12) Article 18 of the WA is the article that permits the introduction of a new constitutive scheme. It states that the UK ‘may require Union citizens… to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form.’
13) This is a novel phenomenon in the EU legal order, which has long rested on declaratory rights – you have to meet the conditions to have the rights, but meeting the conditions should be enough. Both EU and UK authorities have struggled to address what this means. The EU Commission has used the language of a ‘true’ and ‘extra’ cohort, suggesting that some people with EUSS status have WA rights (the ‘true’ cohort) and some do not (the ‘extra’ cohort),[2] because they do not also meet the underlying conditions the WA permits the UK to impose – but which the UK chose not to impose. The EU Commission has continued to raise as problematic that EU citizens who hold a residence status under the EUSS do not have legal clarity as to whether their rights are guaranteed by the Withdrawal Agreement or not.[3]
iii. The UK government’s desire to withhold benefits as before Brexit
14) The UK government meanwhile has argued in favour of ‘stasis’ – that the same rules that applied before Brexit should continue to apply afterwards, because it wants them to. The government responsible for the creation of the EUSS may not have intended to create a new status with legal consequences, but inconvenient as that may be for them, that is what they have done. However, the UK authorities have essentially argued in favour of cakeism – a scheme that is constitutive for the purposes of excluding non-registrants, but declaratory for the purposes of enjoying the rights attached to the status.
15) The cases in which the issue has emerged (C v Oldham;[4] Hynek v Islington;[5] Fertré v Vale of White Horse District Council[6]) are cases in which someone with pre-settled status, but who does not meet the conditions set out in Article 13 of the WA, has sought access to social assistance or housing assistance. At this point, the UK authorities (local authorities in each of the cases, but also the (then) Department for Levelling Up, Housing and Communities in Fertré) have argued that having PSS alone is not evidence of residing on the basis of the WA – so is not evidence of having WA rights, including equal treatment. The EUSS, so this argument goes, is a purely domestic right, because it was awarded without reference to the conditions which the WA would have permitted the UK to impose.
16) This argument uses a gigantic hammer to break a miniscule nut. It severs the link between the EUSS and the WA, and means that having EUSS status is not enough for anyone to show they are entitled to WA rights. This appears to be the result of a desire to prevent a small number of people with pre-settled status – those who apply for benefits or house and do not have another right to reside (under the legacy pre-Brexit EEA regulations), who are a minority of a shrinking minority and disproportionately more likely to be vulnerable – temporarily accessing some benefits.
Why should the EUSS be treated as evidence of residing on the basis of the WA?
17) There are three key legal reasons why PSS should be treated as equivalent to Article 13 WA status, and by extension, people with EUSS should be treated as residing on the basis of the WA:
18) If the EUSS status is not WA residence status, then what is? Under this reasoning the UK has failed to discharge its obligations to provide such a status and documentary evidence of that status, as required by Article 18 WA. That provision creates an obligation for the UK to award a document that confirms WA status. If EUSS status does not confirm WA status, then the UK has not only not done so, but it has misled millions people into thinking they have WA status by virtue of the EUSS, when they do not.
19) If the EUSS status is not WA residence status, then what is it? Article 18 WA gives the UK the power to institute a scheme such as the EUSS. It permits a departure from the Article 12 WA principle of non-discrimination, in order to institute a new compulsory application scheme for a status that confers Title II rights. If EUSS status does not confer Title II rights, then it is not an exercise of the exception provided in Article 18 and is a discriminatory scheme, imposing administrative burdens upon EU nationals contrary to Article 12 WA. In which case, the UK has acted ultra vires in obliging all EU nationals within the scope of the WA to apply for the EUSS; it amounts to a discriminatory administrative burden.
20) If EUSS status is not WA residence status, the UK government created a severe, invisible disjuncture, permanently but secretly stripping all EU nationals of any means of evidencing Title II rights. This would mean that in the future, even those with EUSS settled status cannot rely on that to invoke WA rights. Instead, there must be an extensive retrospective examination of each and every EUSS status holder’s circumstances to ascertain whether or not they fell outside of the scope of the WA in the past, stripping the system of any certainty. It is the worst of both worlds; it renders the whole scheme declaratory, while misleading recipients into thinking they have a constitutive status, creating uncertainty squared.
The secret severing of rights
21) The UK government’s argument separates those with EUSS status and WA rights from those who have EUSS status but no WA rights – but it does not tell anyone which camp they fall into. This separation is permanent and goes beyond PSS; on this logic, someone with domestic-only rights would attain settled status purely through domestic law and therefore be at risk of any changes to that domestic law.
22) Over the (relatively small) question of whether a constitutive status can confer temporary equal treatment rights, the previous UK government has argued for something of a nuclear option – permanently ejecting hundreds of thousands of people from the complete scope of Title II of the WA, in spite of their holding a constitutive EUSS status, and without actually telling them so.
23) As a result, no one with EUSS status who has not claimed benefits while pre-settled, can know whether the UK deems them to have Withdrawal Agreement rights. Most will be under the impression that they have WA rights, and be unaware that, in the eyes of the government they either never had those rights, or have lost those rights, or have yet to prove they have not lost them.
What are the consequences?
24) This sudden deprivation of WA status and rights matters. Showing that you have WA rights will become increasingly important over the coming years and decades, with future UK governments free to increase regulatory divergence between the UK and the EU. The UK government may choose to make changes to the rights of those reliant on domestic immigration law (and their family members and future children) which would not affect those covered by the WA. A key example would be the rights of family members, which are protected in the WA.
25) Another example is social rights, as exemplified recently by the previous government which announced a proposal that people with settled status might not be eligible for social housing until they have resided in the UK for ten years – unless they have “equal treatment rights” under the Withdrawal Agreement – setting up a significant difference in rights between ‘WA valid’ settled status and ‘WA invalid’ settled status.[7]
26) Years and decades into the future, it could be nightmarish for millions of people having to undertake extensive, retrospective documentary investigations to prove their status, during which the evidential hurdles will make it impossible for many to show that they had and continued to have WA rights. This is precisely the problem posed by a declaratory scheme that the UK government purported to avoid in its adoption of a constitutive scheme.
How can this be avoided?
27) While there are ongoing, complex legal cases, already throwing up contradictory judgments, they will take years to reach a conclusion, and the protection of WA rights is not a guaranteed outcome. In contrast, the new UK government could solve this problem, and prevent the coming catastrophe quite simply.
The government could take three steps to close the EUSS/WA protection gap.
(1) Introducing a legislative/quasi legislative declaration (we outline below different options), to state that:
All people who have been granted status under the EU Settlement Scheme are residing on the basis of the Withdrawal Agreement, and have the rights that follow from this.
Holding pre-settled status confers the rights attendant upon residing on the basis of Article 13 WA.
Holding settled status confers the rights attendant upon residing on the basis of Article 15 WA.
Holding pre-settled status for 5 years (without undue absences from the UK) confers the rights attendant upon residing on the basis of Article 15 WA.
Anyone who has applied to the EUSS whose application is pending, has rights under the WA, until they received a decision on the EUSS, as required by Article 18(3) WA.
Anyone granted status under, or with a pending application to, the EUSS, is in the personal scope of the WA.
(2) Ensuring that the digital document evidencing the EUSS states that:
The document evidences that the holder is residing on the basis of the Withdrawal Agreement, and:
The document confers the rights in Title II of the Withdrawal Agreement.
Failure to do so could make it less easy to rely upon the (direct effect of the) Withdrawal Agreement.
(3) Notifying the Specialised Committee on Citizens Rights of the legislative development, thereby affirming to the Committee and the EU Commission that EUSS status confers the residence rights, and associated rights, within the Withdrawal Agreement.
(1) The declaration on Citizens’ Rights – options as to format and scope:
Gold standard solution: Introducing the declaration through regulations to add a provision into the European Union (Withdrawal Agreement) Act 2020.
Silver standard solution: Introducing the declaration through a standalone Statutory Instrument. Risks: This provides a legislative solution, but is more easily amended than a statute. This makes it easier to introduce, but also easier to remove.
Bronze standard solution, level 1: Introducing the declaration through an amendment to the Immigration Rules, Appendix EU. Risks: The Immigration Rules are more easily amended than legislation; this option could provide short term security but renders the issue of WA scope more subject to domestic executive whim.
Bronze standard solution, level 2: Introducing the declaration through an amendment to the Immigration Rules, Appendix EU, to cover only EU nationals and their family members granted status under the EUSS. Risks: excludes extra categories of people not originally included in the WA, such as Zambrano carers, from potential WA level protection.
Tin standard solution: Introducing the declaration through an amendment to the Immigration Rules, Appendix EU, to cover only EU nationals and their family members who have settled status, or who have held pre-settled status for five years (without undue absence from the UK). To further state that people with PSS are in the personal scope of the WA. Risks: As above under Bronze; in addition, it establishes the principle only for EU nationals and family members (excluding e.g. Zambrano carers) with EUSS settled status, mitigating some of the long term risks faced by the whole cohort, while still leaving people with pre-settled status more likely to be subject to discrimination, but entitled to some protection from the Charter of Fundamental Rights.
[1] House of Commons Home Affairs Committee; Oral evidence: The work of the Home Secretary, HC 434; Wednesday 27 February 2019, Q759; Q764
[2] Joint statement following the meeting of the Specialised Committee on Citizens’ Rights, 17 June 2021
<https://commission.europa.eu/publications/joint-statement-following-meeting-specialised-committee-citizens-rights_en>.
[3] Joint statement following the meeting of the Specialised Committee on Citizens’ Rights, 6 June 2024 <https://commission.europa.eu/publications/joint-statement-following-fourteenth-meeting-specialised-committee-citizens-rights_en>
[4] [2024] EWCC 1 (Case J05MA951) a section 204 Housing Act 1996 appeal, 22 May 2024.
[5] K40CL206; 24 May 2024.
[6] [2024] EWHC 1754 (KB) 8 July 2024.
[7] Department for Levelling up, Housing and Communities, Open consultation: Consultation on reforms to social housing allocations, 30 January 2024:
https://www.gov.uk/government/consultations/consultation-on-reforms-to-social-housing-allocations/consultation-on-reforms-to-social-housing-allocations