Citizens’ rights in the Withdrawal Agreement

This post, written by Will Perry of Monckton Chambers, surveys the rights of EU citizens living in the UK under the Withdrawal Agreement.

There are over 3 million EU citizens living the UK, and over 1 million UK citizens living in the EU-27. This post provides a general overview of the post-Brexit rights of the former, many of whom will have built lives in the UK on the basis of EU free movement rights.

It should be recalled that free movement rights go beyond a basic right of residence. They include rights such as the right to work, receive social security benefits, access services (such as healthcare), and have professional qualifications recognised.

Rights under the Withdrawal Agreement

The key date for EU citizens arriving in the UK is the end of the transition period. This is currently 31 December 2020 (though the UK and EU can agree to extend it). Before the end of the transition, EU free movement rights continue to apply as if the UK was an EU Member State. However, with the end of the transition period comes the end of EU free movement. The statutory mechanism currently proposed for removing retained EU law relating to free movement rights (as well as other retained EU law relating to immigration) is Clause 1 and Schedule 1 of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill – which is currently before Parliament.

Part 2 (Articles 9-39) of the Withdrawal Agreement concerns citizens’ rights. It guarantees that EU nationals who arrive before the end of the transition period (and most close family members who arrive after) will continue to enjoy substantive EU free movement rights. These include general rights of non-discrimination on the basis of nationality (Article 12) and equal treatment to UK citizens (Article 23), which apply to citizens’ entitlement to work, study, and access housing, public services, and tax and social advantages.

To protect these rights, individuals must apply to the UK’s ‘EU Settlement Scheme’. The Scheme offers two types of status, both of which protect free movement rights:

• Settled Status. For those who have been continuously resident in the UK for upwards of 5 years. Importantly, the Citizens’ Rights Directive rules regarding the right of permanent residence apply here. So “temporary absences” are permitted, and exemptions to the 5 year requirement apply (e.g. for those who are forced to stop working due to “permanent incapacity”).

• Pre-Settled Status. For those who have resided in the UK for less than 5 years. Pre-Settled Status confers the same rights as Settled Status, minus the right to permanent residence. Once an individual reaches 5-years of continuous residence, they must apply for Settled Status.

Most EU citizens arriving after the end of the transition period will not benefit from the protection of the Withdrawal Agreement. Instead they will be subject to the UK’s (new look, points based) domestic immigration regime.

Unsettled status?

It would be impossible to cover all legal issues thrown up by the Withdrawal Agreement and UK implementing legislation. (For something more comprehensive, see this EU Commission Q&A.) I highlight here a couple of points that seem to me to be particularly important.

Those who fail to apply for status

The Home Office has granted status to over 3 million EU citizens to date. However, there is no way of knowing how many EU citizens are eligible. Commentators have highlighted that analogous programs in other countries have never reached 100% of those eligible. A recent survey of EU citizens revealed that 7% of those who had not applied for Settled Status did not think they needed to do so.

Say, for sake of argument, that 5% of EU citizens’ who wish to remain in the UK fail to apply to the Settlement Scheme before the deadline (6 months after the end of the transition period), then over 150,000 individuals could be left without status. There is also a risk of another cliff-edge when those with Pre-Settled status see that status expire and must apply to convert to Settled Status (critics say that many eligible for Settled Status are incorrectly being granted Pre-Settled status).

The significance of failing to obtain status is that the individual then loses the legal right to remain in the UK. This leaves them liable to be deported. Even if not deported, individuals will have to battle with the ‘Hostile Environment’, which affects, amongst other things, rights to work, rent a home, and access public services. Critics have warned that the fallout could dwarf the effects of the Windrush Scandal.

The Home Office has provided two assurances to counter concerns. First, it will not automatically deport EU citizens without status. Second, it will permit those with a “good reason” to apply later if they miss the deadline.

However, the “good reason” criterium does not seem on its face to inspire much legal certainty and could result in a deluge of cases being adjudicated on by the Home Office or the Asylum and Immigration Chamber of the First-tier Tribunal.

Further, there may be significant equality concerns. It has been accepted by all stakeholders (including the Home Office, which has directed funding to tackle this issue) that vulnerable individuals are far more likely to miss deadlines to apply for the Scheme. If these cliff-edges disproportionately affect the vulnerable, a high-profile discrimination challenge could be on the cards.

No physical proof of status

EU citizens who receive status can only evidence this digitally. By contrast, all other migrants and UK Citizens are able to evidence status via hard copy. This difference in approach may have significant ramifications. For example, landlords and employers may be discouraged from renting properties or offering jobs if an applicant cannot hand over physical proof of their right to be in the UK.

Article 18 of the Withdrawal explicitly provides that residence documents “may be in a digital form”. However, it might be argued that the Government’s approach undercuts citizens’ rights to non-discrimination and equal treatment under the Withdrawal Agreement; and that the UK is not actively ensuring that it fulfils its obligations under, and attains the objectives of, the Agreement, as required under Article 5. Digital-only status might also unlawfully interfere with EU citizens’ rights under Article 14 of the European Convention on Human Rights and Fundamental Freedoms.

These types of arguments raise interesting questions. How are internal conflicts within the Withdrawal Agreement to be resolved – in particular conflicts between general principles and more specific, practical provisions? What is the substantive relationship between the Withdrawal Agreement and the European Convention? And how do these two sources of international law interact on a practical level? For example, if a UK Supreme Court judgment went against vulnerable individuals without status, or citizens challenging digital-only proof, would an application to the European Court of Human Rights or a reference to the CJEU (under Article 158 of the Withdrawal Agreement) have precedence? These are the types of interesting and difficult legal questions EU Relations lawyers will have to grapple with in the months and years to come.

What’s next?

Citizens’ rights issues have remained emotive and politically charged throughout the Brexit process. The EU has already expressed concern with the UK Settlement Scheme. Those criticisms are likely to become more heated now that the Withdrawal Agreement Committee and Specialised Citizens’ Rights Committee have begun to meet, and as the end of the transition period draws nearer.

The most significant development to date is the EU Commission’s recent initiation of infringement proceedings against the UK for failure to comply with free movement rules during the transition period. In its Letter of Formal Notice, the Commission states that the UK’s shortcomings may affect the implementation of citizens’ rights after the end of the transition period. Though the letter does not appear directly to criticise the UK’s implementation of Part 2 of the Withdrawal Agreement.

All of this is to say nothing of UK concerns about how its citizens are being treated by EU Member States, or the practical enforcement of citizens’ rights, which will be subject to analysis in a subsequent blog post.