The EU Settlement Scheme (EUSS) is unlawful because it contravenes the Withdrawal Agreement negotiated between the UK and the EU. Under the EUSS, certain EU citizens living in the UK after Brexit were granted limited leave to remain for five years and were required to re-apply if they wished to remain lawfully in the UK thereafter. In this ruling, Lane J held that those who had been granted the residence rights created by Part 2 of the Withdrawal Agreement could not lose those rights at the end of a period of limited leave if they failed to re-apply. The claimant was the Independent Monitoring Authority for the Citizens’ Rights Agreements, serving to protect the rights of EU citizens living in the UK, which sought judicial review of the EUSS regulating residence rights of EU citizens following the UK’s withdrawal from the EU. After 31 December 2020, EU citizens could no longer enter or remain in the UK pursuant to the right of free movement conferred by Article 21 of the TFEU. Part 2 of the Withdrawal Agreement negotiated between the UK and the EU provided for rights of residence for those who had settled in the UK before the end of the withdrawal transition period and Article 13(1) provided for a right to reside subject to specified limitations and conditions. Article 15 conferred a right of permanent residence on those who had lawfully been residing in the UK for a continuous period of five years.
Notably, Article 13(4) provided that the SSHD could not impose any other limitations or conditions for obtaining or retaining residence rights and Article 18(1) empowered her to require all EU citizens living in the UK to apply for a new residence status conferring the residence rights set out in Part 2. Indeed, the SSHD purported to exercise that power by establishing the EUSS. The EUSS was “constitutive”. The Part 2 residence rights did not arise automatically upon the fulfilment of the conditions necessary for their existence and instead EU citizens living in the UK were required to apply for leave to remain under the Immigration Act 1971 so that Part 2 residence rights could be conferred by the grant of residence status. Upon such an application, those EU citizens who had lived in the UK continuously for five years or more would be granted indefinite leave to remain (“settled status”). Those who had been in the UK for less than five years would be granted limited leave to remain for five years (“pre-settled status”). Significantly, if they did not make a further application for leave to remain, then upon the expiry of their limited leave they would lose their pre-settled status and would become overstayers.
Background
The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) argued that:
(i) first of all the SSHD was in breach of Article 13(4) because, by requiring a further application after the grant of pre-settled status—limited leave to remain, she was placing “limitations or conditions” on obtaining or retaining residence rights, and
(ii) the right of permanent residence conferred by Article 15 accrued automatically once 5 years’ lawful residence had been achieved, and it was unlawful for the SSHD/government to withdraw that right in the absence of a further application. IMA was established pursuant to Article 159(1) of the Withdrawal Agreement.
The European Commission and The3Million were interveners in these proceedings. The court granted the application for judicial review.
High Court
Lane J said that the Withdrawal Agreement had been given the force of law by the United Kingdom Parliament under section 7A of the European Union (Withdrawal Act) 2018. It was therefore the task of the court to interpret the Withdrawal Agreement.
The court found for IMA on both issues and the IMA was entitled to a declaration that the SSHD’s interpretation of the Withdrawal Agreement, the EEA EFTA Agreement and the Swiss Citizens Rights Agreement is wrong in law and that the EUSS is thus accordingly unlawful insofar as it (a) purports (as described in the court’s findings on the first issue) to abrogate residence rights arising under the Agreements in respect of those granted limited leave to remain; and (b) purports to abrogate the permanent residence right in the manner described in the court’s findings in respect of the second issue.
Interpretation of Withdrawal Agreement
Lane J examined the interpretation of the Withdrawal Agreement and said his task was to interpret the Withdrawal Agreement according to the interpretative principles set out in Article 31 of the Vienna Convention on the Law of Treaties 1969 (VCLT).
The High Court followed Basfar v Wong [2022] 3 WLR 208 (Lord Briggs/Lord Leggatt at paragraph 16) that the provisions of an international treaty enacted into UK law fall to be interpreted:
16. …. not by applying domestic principles of statutory interpretation, but according to the generally accepted principles by which international conventions are to be interpreted as a matter of international law… those principles are set out in the Vienna Convention on the Law of Treaties 1969.
Furthermore, the court had to interpret the Withdrawal Agreement in accordance with the ordinary meaning of its terms in their context and in the light of its object and purpose—that was an essentially objective exercise and Lane J said:
64. This claim is about the interpretation of the WA. The WA is an international treaty. As such, the relevant interpretative principles are those contained in the Vienna Convention on the Law of Treaties 1969; in particular, Articles 31 (general rule of interpretation) and 32 (supplementary means of interpretation). Article 31(1) provides that a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty, in their context and in the light of the treaty’s object and purpose. That is an essentially objective exercise.
The court did not doubt the fact that a new legal order had arisen in the UK post-Brexit. EU legal concepts such as free movement were not to be imported into, or inferred from, the Withdrawal Agreement except insofar as necessary to comply with the general rule of interpretation in Article 31 of the VCLT. Further, the residence rights created by Article 13 of the Withdrawal Agreement were not free movement rights. Lane J found that:
134. I have mentioned that the defendant, in framing the EUSS, has adopted a policy which is more generous than what is required by the WA, in that leave may be granted under the EUSS by reference to “mere” residence in the United Kingdom at the relevant point in time, rather than residence in accordance with EU free movement rights. This policy, however, sheds no light on the interpretative task for this court.
The SSHD attempted to place great store on the fact that the IMA and the Commission argued for an interpretation of Article 18 (Issuance of residence documents) of the Withdrawal Agreement, which entails an individual who has been given pre-settled residence status under Article 18, automatically obtaining the right of permanent residence under Article 15, upon the completion of the necessary five-year period of residence.
The SSHD said that this is to interpret article 18 as a one-off grant of “gateway” status, which “would not, in fact, confer residence rights at all”. Making it “over the first hurdle of falling within the scope of the Withdrawal Agreement at the time of the application” may be a “status” but, the SSHD said, it is not a “residence status” and the point of the constitutive scheme envisaged by Article 18(1) was, according to the SSHD, to confer actual residence rights, not merely a gateway or qualifying right. In contrast, the SSHD maintained that her interpretation is consistent with the language of Article 18(1) and that the status granted under the EUSS, whether pre-settled or settled, is a residence status in the true sense, which confers residence rights. The grant of limited or indefinite leave to remain itself confers the relevant right to reside. Lane J was of the following view:
136. I consider this last element of the proposition – that the grant of limited or indefinite leave itself confers the relevant right to reside – is right; but that it exposes a fundamental difficulty in the defendant’s approach to the WA. This difficulty arises, even if, on a proper construction of the WA, the defendant is entitled to require an application to be made to her, in order for a person granted limited leave under the EUSS, who has subsequently achieved five years’ compliant residence in the United Kingdom, to be able to enjoy the Article 15 right of permanent residence.
Next, he turned to article 13(4) of the Withdrawal Agreement.
Article 13(4) limitations or conditions
The court needed to address the issue of whether the SSHD can deal with a person who is given limited leave to remain under the EUSS by way of pre-settled status, in such a way that they lose any right to be in the United Kingdom if their leave expires without them applying for (and being granted) further leave, either limited leave or indefinite leave.
The difficulty for the SSHD centred on Article 13. Once it was accepted by the SSHD that rights of residence as described in Article 13 are conferred under the constitutive scheme, attention turned to what is meant by the prohibition in Article 13(4) on the imposition of limitations or conditions for obtaining or retaining residence rights.
The SSHD argued that this prohibition must be read as applying to substantive limitations and conditions and the grant of limited leave to remain to those with a right of residence under Article 13, falling short of the right of permanent residence under Article 15, is, not a substantive limitation or condition. It is merely procedural.
Moreover, Article 13 (Residence rights) is subject to Article 18 and “no right is acquired at all in the absence of a successful application for it”. This, the SSHD said is “because Article 18(1) expressly requires a successful application for status for the relevant rights to be acquired … it is the grant of the application which ‘confers’ the right … in the absence of a grant of status pursuant to a successful application, there is no right to lose”.
On the other hand, the IMA stressed that the consequence under the 1971 Act of limited leave coming to an end—without being followed by further leave—is very serious as the person concerned becomes an overstayer, who from that point is in the UK unlawfully. A person who knowingly remains beyond the time limited by the leave commits a criminal offence under section 24 of the 1971 Act. There is no legal ability to work or claim certain benefits.
Unless a further application had been made and granted, a person with limited leave to remain would be in the UK unlawfully once their limited leave expired. They would be committing a criminal offence and they could not legally work or claim certain benefits, and those consequences could not be brushed aside as merely procedural matters.
Limited leave was a limitation on retaining residence rights, the requirement for a further application was a condition of retaining such rights. Both were precluded by article 13(4). In any event, the substantive/procedural distinction was irrelevant and the court agreed with the Commission on the point.
The court found no reason to doubt that the SSHD will—as she said—support vulnerable individuals with pre-settled status in order to apply for settled status. However, this alone did not permit Lane J to construe Article 13(4) to counter to the ordinary meaning of the words, seen in the light of the object and purpose of the Withdrawal Agreement. Not only is limited leave in these circumstances a “limitation” on retaining residence rights, but the requirement to apply for further leave is itself “a condition” for retaining such rights and both are precluded by Article 13(4). Lane J held at length as follows:
146. I do not consider the defendant’s argument that Article 13(4) is subject to Article 18 assists her in respect of the position of those with pre-settled status. Even if the defendant is right to say that a person who has pre-settled status must apply for the right of permanent residence, once the relevant condition is satisfied, this cannot affect the way in which Article 13(4) applies to those with residence rights under Article 13(1), which fall short of permanent residence under Article 15.
147. Nor do I consider there is anything that assists the defendant in her appeals to legal certainty and procedural autonomy. If the defendant is right on the first issue, a very large number of people face the most serious uncertainty. If they lose legal status in the United Kingdom, their continued physical presence here will depend on the view taken by the defendant on whether to enforce immigration control by insisting on the individual’s removal. Someone who makes a belated application for further leave will not know whether the defendant will accept the late application. Any appeal to procedural autonomy is, on this issue, hopeless. It cannot be invoked to gainsay the clear words of Article 13(4).
148. Although I have rejected the defendant’s attempt to categorise the nature of limited leave and what flows from it as procedural, as opposed to substantive, I agree with the Commission that the distinction is ultimately irrelevant to the court’s interpretative exercise. Article 39 provides that beneficiaries of residence rights enjoy those rights for as long as they meet the relevant conditions. Absent a change in circumstances, protection under the WA is life-long. Whether it is categorised as procedural or substantive, something which, in reality, constitutes a limitation or condition of the Article 13 right is prohibited. There can be no doubt that the way in which the 1971 Act works has “real world” outcomes for those with pre-settled status.
149. The defendant submits that the consequences for those who, despite her encouragement and support, do not apply to extend their limited leave are the consequences of the United Kingdom’s decision to adopt a constitutive scheme under Article 18. In the United Kingdom, that scheme is the 1971 Act, with all it entails.
150. The problem with this submission is that, 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. This is so, even where, as here, what is chosen as the delivery system is the long-standing machinery contained in the Immigration Acts.
Those who had been granted Article 13 residence rights by the operation of a constitutive scheme could not lose those rights at the end of a period of limited leave if they failed to apply for further rights. The court further considered the right to permanent residence.
Article 15: right to permanent residence
The second issue before the court concerned the meaning of Article 18 of the Withdrawal Agreement; in particular, what is meant by the “new residence status” which confers “the rights under this Title”.
The SSHD submitted that the IMA and the Commission were wrong to say that one of the rights inherent in the grant of residence status, following an application, is the right to be recognised as having the right of permanent residence under Article 15, once the requisite 5-year period of residence has been achieved, without the individual having to make an application to the SSHD for the grant of permanent residence. After conducting a lengthy analysis of the granular details of the law, Lane J held that:
177. I agree with the claimant and the Commission that it is highly significant that Article 18(1)(a), (b), (c) and (d) make it plain the constitutive scheme established by Article 18 requires a person to make one, and only one, application for a new residence status. So too does Article 18(2). If the defendant were right about what is contained in the new residence status, in the case of a person granted pre-settled status because they have not yet achieved the right of permanent residence, then the WA has failed to explain how that person is to apply for the right of permanent residence; and how the application is to be handled by the State concerned. That would be a remarkable omission.
178. This problem seems to me to be reinforced by the defendant’s pointing to the words “that status” in Article 18(1)(a) as indicating a single grant of something that depends upon the applicant’s position at that time.
179. The defendant seeks to circumvent this problem by submitting that the fact the WA does not specify deadlines for later applications does not mean that such later applications cannot be required. It simply means the WA does not regulate the timescales for such applications, leaving this to national law. It is, however, in my view inconceivable that the WA would not have expressly covered such an obviously important matter. There is no basis for construing the WA so as to infer a requirement to make a second application for residence status conferring different “rights under this Title”, according to some procedure that is left wholly to the State concerned. This is particularly so, given that the WA has been at pains to impose requirements regulating the procedures for the Article 18 application: see e.g. Article 18(1)(e). I do not accept that the reference in that sub-paragraph to “applications” extends to applications not described in the preceding sub-paragraphs; and so can cover the subsequent applications for which the defendant contends. It is manifest in my view that the reference to applications is to the applications described in sub-paragraph (b) et seq. If the position were otherwise, the failure of the WA to refer expressly to subsequent applications for permanent residence becomes all the odder. A similar point can be made about the reference to “application forms” in Article 18(1)(f).
Lane J explained that there was little to be gained by the SSHD’s attempt to categorise the nature of the right to acquire permanent residence as contingent. Counsel for the IMA and the UK both described the right as contingent, but they continued to disagree on what this meant for their respective cases.
In the court’s opinion, the fact that the right to acquire permanent residence may, in the event, never lead to the right of permanent residence did not say anything meaningful about how the right of permanent residence is acquired. Lane J said he did not consider that Article 17 says anything relevant on this aspect and he held that:
192. Accordingly, my conclusion is that the claimant and the Commission are correct. Properly interpreted, the WA means that the rights conferred by the grant of new residence status under Article 18 to those who do not, at that point, have a right of permanent residence, includes the right to reside permanently in the United Kingdom, pursuant to Article 15, once the five-year period has been satisfied (subject to the conditions mentioned in Article 15(1)). I reach this conclusion by reference to Article 31 of the Vienna Convention.
The court did not arrive at this conclusion by importing any free-standing principles of EU free movement law because, so far as the UK is concerned, there are no such free-standing principles.
The court confirmed that there is no need for a reference to the CJEU and that the matter was acte clair.
Comment
The position of the SSHD remained that an applications-based scheme, such as the EUSS, provides secure evidence of status and is a better way of protecting people—including vulnerable individuals—compared with the declaratory system. The government said that this had been demonstrated by the experience of members of the “Windrush generation”, who had acquired indefinite leave to remain automatically by virtue of section 1(2) of the 1971 Act but then, years later, had difficulty proving their status and rights in the UK.
The court decided that a right of residence can only be lost in very specific circumstances (which are clearly defined in the EU Withdrawal and EEA EFTA Separation Agreements) and a failure to upgrade from pre-settled to settled status cannot entail a loss of residence rights. The court recognised the significant impact this issue could have on the lives and livelihoods of citizens with pre-settled status in the UK and in December 2021 when these proceedings were filed there were approximately 2.2 million such persons. As of 30 June 2022, a total of 6.5 million (6,473,830) applications had been concluded and of those 51% (3,281,950) were granted settled status, 41% (2,627,770) were granted pre-settled status. The SSHD is appealing the above judgment of the court.
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