Problems with the IMA’s position on Art. 10 and 13 WA on the scope of the WA

This briefing was shared with counsel for the3million in their preparations for C v Oldham (Case J05MA951) a section 204 Housing Act 1996 appeal.

This briefing engages with the arguments/suggestions put forward in the skeleton argument published by the IMA, in the case described as Appellant v Council A & C v Council B, addressing appeals under s. 204 of the Housing Act. This briefing focuses on two aspects of the ‘personal scope” issues of the Withdrawal Agreement – (i) the interpretation of the conditions set down in Article 10 WA; and (ii) whether attainment of pre-settled status should be treated as attainment of Article 13 WA status.

Proposed interpretation of conditions in Article 10(1)(a) WA

1) Article 10(1)(a) states:

Without prejudice to Title III, this Part shall apply to the following persons:

(a) Union citizens who exercised their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter.

2) There are two key conditions here for EU nationals to fall within the scope of Part II of the Withdrawal Agreement:

exercising a Union-law based right to residence in the UK ‘before the end of the transition period’;
continued residence in the UK after the transition period.

3) As to the first condition – there is no condition that a particular right to reside is exercised. A right to reside under Article 6 Directive 2004/38 (a right to reside for three months without conditions attached) would suffice (all parties appear to agree).

4) Nor is there any stipulation that the right should be being exercised immediately before the end of the transition period, or actually on 31 December 2020. It is enough that a right to reside was exercised at some point before the transition period ended.

5) As to the second condition, there is no requirement that the period of residence since the end of the transition period be in accordance with Union law, or with any other conditions. All that can be read into the ‘continued to reside there thereafter’ is a requirement for continued factual residence.

The word ‘continued’ does not import extra conditions

6) The IMA submission places too much reliance on the word ‘continued’ [paras 19-21]. At most, what it implies is that there should not be a break in continuity of factual residence since the end of the transition period and the point at which residence rights under Part II are sought. Indeed, to require more to fall within Article 10 would be to suggest that Article 10 creates the conditions for eligibility for Article 13 or Article 15 rights, which is simply not its job.

7) The UK Supreme Court has, in SSWP v Gubeladze [2019] UKSC 31, already ruled on whether a provision requiring someone to have “resided continuously” imports extra conditions of residing in accordance with Union law, and found that it does not. In the context of Directive 2004/38 – the origin of the purported conditions at issue – the Court looked at the conditions in Article 17 for the accelerated acquisition of permanent residence rights. The ‘standard’ permanent residence provision, Article 16, required five years of residing ‘legally’. The court noted: “the language used in article 17 (“residence”; “have resided … continuously”) is in marked contrast to that used in article 16 and again in article 18 (“have resided legally” and “after residing legally”). This has every appearance of being deliberate” [83].

8) Having incorporated an element of the right to reside test in the first condition of Article 10(1)(a) WA, it would appear deliberate that the drafters of the WA did not include such an element in the second condition relating simply to residence. Indeed, had they intended to incorporate a right to reside test in the second condition, they would have had to stipulate the period for which someone had to be exercising such a right, and spell out whether it had to be the same right being continuously exercised, or whether continuous coverage is enough and someone could switch between rights to reside during that period. Furthermore, as such residence in the period beyond the end of the transition period could not be based upon Union law in the same way as the first condition (relating to residence before the end of transition period) could be, the text would also have to spell out the new legal basis.

9) It is not realistic to imagine that the drafters anticipated that someone falling briefly outside of the scope of (in effect) Article 7 of Directive 2004/38 would fall permanently outside of the scope of Article 10, and then of Part II of the WA, and yet that they chose to not actually say so in the text of the Agreement.

10) The IMA’s position would require a considerable amount of text, originally deliberately omitted from the sentence, should be read into it, along the lines of:

· “Union citizens who were continuously exercising their right to reside in the United Kingdom in accordance with Union law before the end of the transition period up to and including the 31 December 2020, and continue to reside there and continuously exercise a right to reside in accordance with the conditions and limitations set out in Union law, and which are preserved in, and for the purposes of, Articles 13 and 15 of this Agreement, from the end of the transition period up to and including the point at which Part II rights are claimed. Such Union citizens may rely upon different rights to reside so long as the result is a continuous period during which a right to reside under those conditions is exercised.”

11) In line with the Supreme Court’s reasoning in Gubeladze, it would be overstepping the bounds of legitimate legislative interpretation to infer so much extra text.

Article 10 has a broader scope than Articles 13 and 15 WA.

12) As noted above, it is not the job of Article 10 to set out the conditions for eligibility for the specific rights in Articles 13 and 15. Articles 13 and 15 set out their own conditions and scope, though those conditions can be waived under “more favourable provisions” allowed in Article 38, in combination with the choices open to the UK under Article 18 WA.

13) It is a matter of logic that the scope of Part II, as defined in Article 10, should be broader than the scope of the residence-specific provisions. There will be EU nationals who have not yet obtained a document under Article 18 WA in order to exercise their Article 13/15 WA rights – maybe because they were late in applying due to reduced capacity, or being a child, or because of being born after the end of the transition period. Articles 18(1)(b), 18(1)(d) and 18(3) all support the position that someone who does not yet have Article 13/15 WA rights (and may never have them – they may have a pending application that is ultimately refused; or they may move or die before making an application, or before their application is decided) can still at least temporarily fall within the scope of Part II.

Pre-settled status should be treated as equivalent to Article 13 WA status

14) The IMA suggests that attainement of pre-settled status under the EUSS is probably not enough to bring someone within the scope of Article 13 WA (skeleton, paras 52-53, 55). There are four key problems with this approach:

It belies the existence of a constitutive scheme; the option allowed under Article 18 of the WA, and exercised by the UK.
If the EUSS is not, in itself, an implementation of the WA residence rights, and EUSS status is not evidence of exercising WA rights, then the UK has failed to discharge its obligations to provide such evidence.
If the EUSS is not, in itself, an implementation of the WA residence rights, and EUSS status is not evidence of exercising WA rights, then the UK has acted ultra vires in obliging all EU nationals within the scope of the WA to apply for it; it amounts to a discriminatory administrative burden.
The IMA’s position would create a severe, invisible disjuncture, permanently but secretly ejecting EU nationals from the scope of Part 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 Article 10 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.

1. In a constitutive scheme, the status confers the rights

15) A constitutive scheme is one in which the status carries rights in itself. It is possible to make the conditions permitted by the WA part of the test for attaining that status, but once the status is attained, those rights accrue automatically. Article 18 makes clear 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”. The automatic accrual of rights on admission to a constitutive scheme was confirmed in IMA v SSHD [2022] EWHC 3274 (Admin), where the High Court said:

“whilst the WA permits the use of a constitutive scheme, that scheme must deliver the rights of residence in Title II of Part Two. Neither the United Kingdom nor a Member State can employ a constitutive scheme which fails to do this.” [150].

16) While a constitutive status creates more opportunities for exclusion from the outset, giving the UK more control, the flipside is that the status confers the rights. In a declaratory scheme, there is no deadline so no exclusion from status purely on the basis of non-registration. The main concern is whether someone meets the substantive conditions of the status, and a Member State may check those conditions are met before allowing UK nationals to rely on WA rights.

17) In effect what the IMA position creates is a system that is constitutive purely for the purpose of imposing a deadline, but which is declaratory in order to allow for the imposition of tests subsequent to attaining the status, for meeting certain conditions in order to demonstrate WA coverage, but which were not part of the conditions to get the status in the first place.

2. Failure to award a status that confers the rights in Part II

18) Article 18(1) WA permits the UK to require EU nationals 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”.

19) Article 18(1)(g) notes that the “document evidencing the status shall 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”.

20) Article 18(1)(q) states that “the new residence document shall include a statement that it has been issued in accordance with this Agreement”.

21) Taken together, these provisions create 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 discharged its obligations to do so. Moreover, the UK has acted misleadingly, as millions of people will think they have WA status by virtue of the EUSS, when they do not.

3. Acting outside the scope of, and in breach of, the WA

22) If EUSS status is not evidence of WA coverage, then the UK has no legal authority in the WA for having imposed the EUSS. Article 18 WA permits a departure from the Article 12 WA principle of non-discrimination, in order to institute a new registration scheme for a status that confers Part II rights. If EUSS status does not confer Part 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.

4. Creating a permanent, invisible disjuncture – Windrush II

23) If EUSS status is not equivalent to WA status, then we are faced with a division between those with ‘WA valid’ PSS, and those with ‘WA invalid’ PSS, but there is no indication to those individuals who falls in which camp. Moreover, someone may have WA-valid PSS, but under the IMA’s interpretation, could fall into WA ‘invalid’ group, and would not know that they have done so.

24) This means that when they attain settled status, in the eyes of the IMA, they do so purely on the basis of domestic law, not the WA. So no-one with EUSS status would be able to have any certainty over whether they have WA rights.

25) There is no mechanism within the WA for ‘falling back in scope’ of Part II if someone is deemed to have fallen out of scope. So, over the (relatively small) question of whether a constitutive status can confer temporary equal treatment rights, the IMA is arguing for something of a nuclear option – permanently ejecting hundreds of thousands of people from the complete scope of Part II of the WA, in spite of their holding a constitutive EUSS status, and without actually telling them so, unless and until they happen to apply for social assistance while still holding PSS. As a result, no one with EUSS status who has not made such a claim, can know whether the UK deems them to have Withdrawal Agreement rights, and nor does the UK government consider itself to have made a decision as to scope on any such case.

26) As regards people with pre-settled status who have made a social assistance claim at some point, should they have met the conditions laid down for exercising another right to reside at that point in time, they may have been awarded the benefit and then be under the impression that they have WA status, and be unaware that, in the eyes of the IMA they could still have later lost it.

27) Over the coming years and decades, there may be increasing 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.

28) An example is the rights of family reunification, where coverage by the WA can mean very different rights to those of people with non-WA settled status (or even to the rights of UK citizens).

credit: Simon Dawson / No 10 Downing Street

29) A further example was recently provided by the UK 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” – setting up a significant different in rights between ‘WA valid’ settled status and ‘WA invalid’ settled status.

30) Should the IMA position hold, many people with EUSS status will not be able to invoke WA rights without an extensive, retrospective investigation, during which the evidential hurdles will make it impossible for many to show that they were and continued to be in WA scope.

31) This is precisely the problem posed by a declaratory scheme that the UK government purported to avoid in its adoption of a constitutive scheme. Asked by the Home Affairs Committee why the Home Office was instituting a registration scheme at all for EU nationals in the UK rather than declaring rights through primary law, the then Home Secretary’s response was: “In a word, Windrush”. He added:

“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.”[2]

Professor Charlotte O’Brien & Dr Alice Welsh

EU Rights & Brexit Hub