The EU Rights & Brexit Hub, Professor Charlotte O’Brien & Dr Alice Welsh, University of York – Written Evidence (RES0062)

Submission to House of Lords European Affairs Committee inquiry: The UK-EU Reset

(1)  This submission addresses the first inquiry question: “What should the reset seek to achieve in order to serve the British national interest? What would a successful reset of UK-EU relations look like?” The EU Rights & Brexit Hub is a legal action research centre, providing specialist advice to advisors working with EEA+ nationals, and gathering data on problems encountered in the process. This submission is based on extensive analysis of the Withdrawal Agreement, case work with those seeking to rely on WA rights, and our work on test cases exposing gaps in the UK’s implementation of the WA.

(2)  Before proposing new agreements, it is imperative to ensure that the existing agreements – in particular the Withdrawal Agreement, governing the rights of over 6 million citizens in the UK – are given full effect. The call for evidence notes that “the EU consistently stresses the importance it attaches to full UK implementation of the two main existing UK-EU agreements.” As such, we argue that a ‘reset’ must include resetting the approach to the Withdrawal Agreement (and by extension, the EEA EFTA Separation Agreement and the Swiss Citizens Rights Agreement), as currently the UK practice breaches key obligations, provides no status security to millions of would-be rights holders, and invites the prospect of Windrush II years down the line.

(3)  The UK government’s current approach means that nobody with EUSS status has confirmation that they are residing on the basis of the Withdrawal Agreement. This means:

(i)         the link between the EUSS and the Withdrawal Agreement is severed;

(ii)      Article 18(1) of the Withdrawal Agreement is breached;

(iii)    the imposition of the EUSS requirements were discriminatory in the first place;

(iv)     EUSS holders – both with pre-settled and settled status – are stripped of future Withdrawal Agreement protections – in particular non-discrimination;

(v)       EUSS holders have been misled into believing that they are residing on the basis of the WA;

(vi)     EUSS holders will be subject to domestic immigration law, and the whims of future UK governments.

(i) The failure to properly give effect to a Withdrawal Agreement-based residence status: severing the link between EUSS and the WA

(4)       UK authorities are arguing in court that EUSS status is not in itself proof that someone has Withdrawal Agreement residence rights. This means that none of the 6 million+ people with status under the EUSS can know whether or not they are residing on the basis of the Agreement.

(5)       The UK exercised its prerogative under Article 18 WA to adopt a constitutive scheme, meaning that applying for and obtaining a new residence status was compulsory. Without it there would be no underlying entitlement based on meeting the conditions, as would exist under a declaratory scheme. The flip-side of a constitutive scheme, is that once you have it, that status itself confers the rights associated with it. It is not open to the UK, as it would be in a declaratory scheme, to go behind the status and repeatedly check that conditions (which never formed part of the application process) are met when seeking to rely on that status.

(6)       UK authorities have, however, argued that people with pre-settled status must also meet conditions permitted in Article 13 WA, which provides for temporary residence status, in order to reside ‘on the basis of’ the WA, so be entitled to equal treatment provided for in Article 23 WA.

(7)       The cases in which the issue has emerged (C v Oldham;[1] Hynek v Islington;[2] Fertré v Vale of White Horse District Council[3]) 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.

(8)       In order to prevent a small number of people with pre-settled status who do not have other rights to reside from gaining temporary access to welfare benefits, the UK government has severed the link between the EUSS and the WA. By requiring people with EUSS to also meet WA conditions before they can assert they are residing on the basis of the Withdrawal Agreement, the UK has stripped the EUSS of the certainty it was meant to provide, for all EUSS status holders. Those with settled status would also not be able to assert they were residing on the basis of the WA without demonstrating that they meet the conditions laid down in that Article 15 WA (having exercised a right to reside – typically, by having been in work - for five years). If they had previously held pre-settled status, their subsequent settled status would be deemed a purely domestic status, unless they could also show that during the period of PSS they also met the conditions under Article 13 WA.

(ii) Breaching Article 18(1) of the Withdrawal Agreement

(9)       If the EUSS in itself does not provide evidence of residing on the basis of the WA, the UK has failed to discharge its obligations under Article 18 WA, which states:

“The host State may require Union citizens or United Kingdom nationals, their respective family members and other persons, who reside in its territory in accordance with the conditions set out in this Title, 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.”

That provision creates an obligation for the UK, if it wishes to create a new, constitutive status, to (a) create a residence status which genuinely confers the rights in the WA, and (b) award a document that confirms WA residence status. If EUSS status does not confer the rights within Title II, including the Article 23 right to equal treatment, and if the EUSS digital document does not evidence WA residence status, then the UK has not only not discharged its obligations under Article 18(1) WA, but has misled millions of people into thinking they have WA residence status by virtue of the EUSS, when they do not.

(iii) If the EUSS is not residence on the basis of the WA, the scheme was ultra vires and discriminatory

(10)  Article 18 WA permits a departure from the Article 12 WA principle of non-discrimination, in order to institute a new compulsory application scheme for a new residence status that confers Title II rights, and includes a document evidencing WA residence status. If EUSS status does not confer Title II rights, nor evidence WA residence status, 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.

(iv) Stripping EUSS holders of future Withdrawal Agreement protections

(11)  This sudden deprivation of WA status and rights matters. Being able to rely upon 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.

(12)  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.[4]

(13)  Years and decades into the future, millions of people could have 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.

(14)  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.”[5]

(v) EUSS holders have been misled into believing that the UK accepts that they are residing on the basis of the Withdrawal Agreement

(15)  The UK government’s argument separates those with EUSS status and WA residence rights from those who have EUSS status but not WA residence rights – but it does not tell anyone which camp they fall into. This separation is permanent and goes beyond PSS; 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.

(16)  Over the (relatively small) question of whether a constitutive status can confer temporary equal treatment rights, the UK government is arguing for something of a nuclear option, as a result of which, 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.

(17)  This means that they are not, and have not been, compiling evidence of current or past activities, making it even harder at some point in the future to try and adduce such evidence in order to invoke WA protections. 

(vi) EUSS holders made subject to domestic immigration law, and the whims of future UK governments

(18)  By severing the connection between the EUSS and the Withdrawal Agreement, and asserting that the residing on the basis of the former is not evidence of residing on the basis of the latter, the UK has failed to provide the “certainty to citizens” (§preamble) required by the Withdrawal Agreement. In so doing, the UK authorities are failing to properly implement and enforce the WA.

(19)  When we have raised these questions with the EU Commission, we have had confirmation that the UK’s argument about people with pre-settled status not automatically having WA residence rights would also apply to those with settled status. The Commission has expressed concern with the UK’s failure to provide certainty to those residing on the basis of the Withdrawal Agreement, through a failure, on the UK’s own account, to provide any documentary evidence of such residence.[6]

(20)  When we have raised these questions with the IMA (the Independent Monitoring Authority for the Citizens’ Rights Agreements), the IMA acknowledged that we had correctly identified risks, but that there was so far no indication that the UK government wanted to deny equal treatment to people with EUSS settled status.

(21)  A third-party belief that a current government has not (yet) shown an intention to use the prerogative it has created for itself to discriminate, is a far cry from that government having implemented an actionable, enforceable, internationally binding legal right to equal treatment.

Implementing the Withdrawal Agreement to avoid Windrush II

(22)  To properly implement the Withdrawal Agreement, the government needs to, as a matter of urgency:

(i)               Adopt an amendment to primary legislation (e.g. to the Border Security, Asylum and Immigration Bill); or introduce regulations to insert provisions into the European Union (Withdrawal Agreement) Act 2020 to state that:

• All EEA+ nationals and their family members who have been granted status under the EU Settlement Scheme are residing on the basis of the Withdrawal Agreements, 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.

(ii)             Ensure that the digital document evidencing the EUSS status 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.

(iii)          Notify 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.

Received 1 April 2025