THE INDEPENDENT MONITORING AUTHORITY FOR THE CITIZENS' RIGHTS AGREEMENTS v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2022] EWHC 3274 (Admin)

Case No CO/4193/2021

[2022] EWHC 3274 (Admin)

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 21 December 2022

Before

MR JUSTICE LANE

THE KING

ON THE APPLICATION OF

Between

THE INDEPENDENT MONITORING AUTHORITY FOR THE CITIZENS' RIGHTS AGREEMENTSClaimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

(1) THE EUROPEAN COMMISSIONInterveners

(2) THE3MILLION LIMITEDIntervener

Mr Robert Palmer KC, Ms Clíodhna Kelleher (instructed by the IMA Legal Directorate) for Claimant

Mr David Blundell KC, Ms Julia Smyth (instructed by Government Legal Department) for Defendant

Mr Nicholas Khan KC, (Legal Service, European Commission) for First Intervener

Written Submissions by Ms Galina Ward KC, Mr Bijan Hoshi and Mr Charles Bishop (instructed by Public Law Project) for Second Intervener

Hearing Hearing dates: 1 and 2 November 2022

Further materials and submissions filed on 17 November 2022

JUDGMENT

INTRODUCTION

[1]In the light of the result of the referendum held in 2016 on whether the United Kingdom should leave the European Union, the government concluded with the EU on 17 October 2019 an “Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community”. The agreement is commonly referred to as the Withdrawal Agreement (“WA”).

[2]The United Kingdom left the EU on 31 January 2020. During a transition period, ending at 11pm GMT on 31 December 2020, EU law continued to apply in the United Kingdom. This included the law of free movement under Articles 21, 45 and 49 of the Treaty on the Functioning of the European Union (“TFEU”) and Directive 2004/38/EC (“the Directive”).

[3]The nature and scope of EU free movement rights were incompatible with the general system of immigration control in the United Kingdom, contained in the Immigration Acts; in particular, the Immigration Act 1971 (“the 1971 Act”). Section 1 of the 1971 Act provides that those without the right of abode in the United Kingdom are subject to a system of control, as to which section 3 provides for the grant of leave to enter or remain for either a limited or for an indefinite period.

[4]Section 7 of the Immigration Act 1988 accordingly provided that a person who was entitled to enter or remain in the United Kingdom by reason of EU law was not subject to the requirements of the 1971 Act concerning leave to enter or remain.

[5]Section 7 was repealed with effect from 31 December 2020. After that date, EU citizens cannot rely on a right of free movement to enter or remain in the United Kingdom. They are therefore subject to the 1971 Act, in the same way as anyone else who lacks the right of abode.

[6]Importantly, however, Part Two of the WA makes provision for residence rights in respect of “Union citizens who exercise 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” (Article 10(1)(a)). The nature of these residence rights is set out in Articles 13 to 17 of the WA, whilst provision for the issuance of residence documents is made by Article 18. This Article confers a power on the host State (for our purposes, the United Kingdom) to require EU citizens, their respective family members and other persons, who reside in its territory in accordance with the conditions sets out in Title II of Part Two, to apply for a new residence status which confers the rights under that Title and a document evidencing such status, which may be in digital form (Article 18(1)). B. THE CASE IN OUTLINE

[7]The defendant considers that she has exercised the power in Article 18(1) by making immigration rules under the 1971 Act, to be found in Appendix EU. The claimant contends that the defendant is, in effect, in breach of her obligations under the WA because those rules produce effects that are at variance with the WA.

[8]The claimant was established pursuant to Article 159(1) of the WA. Article 159(1) provides for the implementation and application of Part Two of the WA to be monitored in the United Kingdom by the claimant, “which shall have powers equivalent to those of the European Commission acting under the Treaties to conduct inquiries on its own initiative concerning alleged breaches of Part Two by the administrative authorities of the United Kingdom … [and] to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure with a view to seeking an adequate remedy”.

[9]In broad terms, the defendant’s relevant immigration rules (“EUSS”) operate so as to grant limited leave to remain (five years) under the 1971 Act to those who applied pursuant to Article 18 of the WA for a new residence status, in circumstances where, at the relevant time, the applicant had residence rights under Part Two which did not at that point entitle the applicant to a right of permanent residence, as described in Article 15. The consequence of having time-limited leave to remain is that, following the expiry of that leave, the person concerned will have no lawful status in the United Kingdom, unless that limited leave is extended by operation of law or they are given further leave to remain by the defendant.

[10]An applicant who, at the relevant time, had resided legally in the United Kingdom for a continuous period of five years under the conditions mentioned in Article 15 of the WA was granted indefinite leave to remain under the EUSS.

[11]The claimant is concerned about the position of those who have been granted limited leave to remain under the EUSS pursuant to Article 18 of the WA, as described in paragraph 9 above. In essence, the claimant submits that a person whose limited leave to remain comes to an end, without further leave being granted, faces serious problems; not least, the consequence which follows under the 1971 Act of being in the United Kingdom unlawfully. The claimant says such an outcome is not permitted by the WA.

[12]The claimant is also concerned on behalf of certain citizens of Iceland, Liechtenstein and Norway. On 20 December 2018, the United Kingdom concluded an agreement with those countries: the EEA EFTA Separation Agreement (“SA”). Article 64(1) of the SA conferred upon the claimant the function of monitoring the implementation and application in the United Kingdom of Part Two of the SA. That Part is effectively in the same terms as Part Two of the WA.

[13]Swiss citizens are protected under a separate Swiss Citizens Rights Agreement (“SCRA”). The claimant does not have a role in relation to the SCRA, which makes no provision for a monitoring authority. The claimant suggests, however, that there is no reason why the substantive rights of Swiss citizens in the United Kingdom are any different for present purposes than those of EU citizens and EEA EFTA nationals. The defendant does not demur.

[14]I should mention at this point that the defendant has been more generous in the EUSS than the WA, in that she has given limited or indefinite leave to EU citizens, on the basis of residence simpliciter in the United Kingdom, rather than on the basis of residence in accordance with the conditions applying to the right of free movement. Whilst the claimant acknowledges the defendant’s policy in this regard, this does not, in the claimant’s view, affect its concerns over the position of the cohort given limited leave.

[15]So far, I have referred to the position of EU citizens under the WA and the EUSS. It is the case, however, that Part Two of the WA also confers residence rights on family members, who may or may not be EU citizens: Article 13(2) and (3).

[16]Although, for the most part, the written and oral submissions of the parties made specific reference to EU citizens, it is common ground that those submissions should generally be taken as extending to citizens of the other countries I have mentioned; and also to their relevant family members. I have sought to adopt the same approach in this judgment.

[17]The European Commission (“the Commission”) intervened in this case. Article 162 of the WA provides that:- “Where the consistent interpretation and application of this Agreement so requires, the European Commission may submit written observations to the courts and tribunals of the United Kingdom in pending cases where the interpretation of the Agreement is concerned. The European Commission may, with the permission of the court or tribunal in question, also make oral observations. The European Commission shall inform the United Kingdom of its intention to submit observations before formally making such submissions.”

[18]Having considered the terms on which Saini J granted permission to the claimant to bring this judicial review, and in light of the Judge’s observation that the claimant had raised “a real issue as to the potential application of EU law in the interpretation of the WA”, the Commission decided that it was appropriate to intervene in the present proceedings to the fullest extent described in Article 162. On behalf of the Commission, Mr Nicholas Khan KC filed written observations on 17 October 2022. At the hearing, I also received oral submissions from Mr Khan.

[19]The second intervener is the3million Ltd. This is a not-for-profit organisation formed after the 2016 referendum in order to work on the specific issue of protecting the rights of EU etc citizens living in the United Kingdom, and their families. Despite the objection of the defendant, I permitted the3million Ltd to intervene. I concluded, however, that its intervention should be confined to written submissions, rather than extending to evidence. Written submissions were filed by Ms Galina Ward KC, Mr Bijan Hoshi and Mr Charles Bishop.

[20]Before describing the detail of the claimant's challenge, which is supported by both of the interveners, it is necessary to describe the relevant provisions of the WA, the Directive and the EUSS in greater detail. The relevant provisions of each are set out in Annex 1 to this judgment.

THE WITHDRAWAL AGREEMENT IN DETAIL

[21]The first recital to the WA refers to the “sovereign decision” of the United Kingdom to leave the EU. For the defendant, Mr Blundell KC puts particular emphasis on this recital and on the statement in the fourth recital that “the law of the Union… in its entirety ceases to apply to the United Kingdom from the date of entry into force of this Agreement.” For the claimant, Mr Palmer KC emphasises the reference in the sixth recital to “reciprocal protection for Union citizens… as well as their respective family members, where they have exercised free movement rights before a date set in this Agreement, and to ensure that their rights under this Agreement are enforceable …”.

[22]Mr Blundell highlights the aim set out in the seventh recital of providing “legal certainty to citizens and economic operators as well as to judicial and administrative authorities in the… United Kingdom …”. Mr Palmer contends that the seventh recital is concerned with the separation provisions contained in Part Three of the WA, as opposed to the residence rights in Part Two. I do not consider that much turns on this, since Mr Palmer acknowledges that legal certainty is a general principle of EU law.

[23]Mr Blundell emphasises the reference in the 12th and 13th recitals to the aim of securing “an orderly withdrawal of the United Kingdom” from the EU, as well as the statement in the 14th recital that the WA “is founded on an overall balance of benefits, rights and obligations for the Union and the United Kingdom”.

[24]I turn to the substantive provisions of the WA. Article 4 states that the WA “and the provisions of Union law made applicable by this Agreement shall produce in respect of and in the United Kingdom the same legal effects as those which they produce within the Union and its Member States”. As a result, Article 4 confirms that legal or natural persons shall in particular be able to rely “directly on the provisions contained or referred to in this Agreement which meet the conditions for direct effect under Union law”.

[25]Article 4(3) and (4) contain provisions regarding the interpretation of provisions of the WA “referring to Union law or concepts or provisions thereof”.

[26]At this point, it is necessary to observe that “Union law” is defined in Article 2. The definition includes the TEU (“Treaty on European Union”), the TFEU, the general principles of Union law and the acts adopted by its institutions etc. Article 6(1) says that, for our purposes at least, Union law “shall be understood as references to Union law, including as amended or replaced, as applicable on the last day of the transition period”.

[27]Part Two of the WA begins with Article 9. This contains a number of definitions, including “family members”.

[28]Article 10 is entitled “Personal scope”. It states that Part Two shall apply to specified categories of persons, of which the following is relevant for our purposes:- “(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;”.

[29]Article 10(1)(e) and (f) bring within scope certain family members.

[30]Despite their presence in Annex 1, it is desirable here to set out the following provisions of Article 13 (Residence rights):- “1. Union citizens and United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in Articles 21, 45 or 49 TFEU and in Article 6(1), points (a), (b) or (c) of Article 7(1), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC.” [13(2) and 13(3) concern family members] … 4. The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.”

[31]I should mention here that Title II of Part Two encompasses Articles 13 to 29. It is also necessary at this point to explain the provisions of the TFEU and the Directive, which are mentioned in Article 13(1).

[32]Article 21 of the TFEU contains the general right of free movement, which is that every Union citizen shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. Article 45 provides that such freedom of movement entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment. Article 49 prohibits restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State, as well as explaining what is included in the concept of freedom of establishment.

[33]Article 6 of the Directive gives Union citizens the right of residence on the territory of another Member State for a period of up to three months, without any conditions or formalities, other than the need to hold a valid identity card or passport. This extends to family members in possession of a valid passport, who are not nationals of a Member State, but who are accompanying or joining the Union citizen.

[34]Article 7(1)(a) to (c) confers the right of residence for a period of longer than three months, provided that the EU citizen concerned is a worker or self-employed person in the host Member State, has sufficient resources for themselves and their family members so as not to become a burden on the social assistance system of the host Member State, and has comprehensive sickness insurance cover in that State; or is enrolled as (in effect) a student, having comprehensive sickness insurance as well as providing an assurance that they have sufficient resources for themselves and their family during the period of residence. Article 7(1)(d) confers the right on family members of a Union citizen who satisfy the conditions in points (a), (b) or (c).

[35]Article 7(3) makes provision in certain circumstances for a person who is no longer a worker or self-employed person to retain that status; e.g. because they are temporarily unable to work as a result of illness or accident.

[36]Article 14 enables Union citizens and their family members to have the right of residence provided for in Article 6, as long as they do not become an unreasonable burden on the social assistance system of the host Member State.

[37]Article 16 confers the so-called right of permanent residence upon Union citizens who have resided legally for a continuous period of five years in the host Member State. This right of permanent residence is not subject to the conditions provided for in Chapter III (i.e. Articles 6 to 15).

[38]It is to be noted that Article 16(4) provides that, once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years. Under the WA, as we shall see, the right of permanent residence conferred by Article 15 of that Agreement is lost only through absence from the host state for a period exceeding five consecutive years.

[39]Article 17 of the Directive enables certain persons to acquire the right of permanent residence before the completion of a continuous period of five years, by reason of retirement or permanent incapacitation.

[40]Article 15 of the WA confers a right of permanent residence:- “1. Union citizens and United Kingdom nationals, and their respective family members, who have resided legally in the host State in accordance with Union law for a continuous period of 5 years or for the period specified in Article 17 of Directive 2004/38/EC, shall have the right to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with the Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence. 2. Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance with Article 16(3) and Article 21 of Directive 2004/38/EC. 3. Once acquired, the right of permanent residence shall be lost only through absence from the host state for a period exceeding 5 consecutive years”.

[41]So far as concern the references in Article 15 of the WA to provisions of the Directive which I have not described above, Article 16(3) of the Directive explains that the continuity of residence shall not be affected by temporary absences not exceeding a total of six months in a year; or by absences of a longer duration for other specified reasons or “important reasons”, of which pregnancy, childbirth and serious illness are amongst the examples given.

[42]Article 18 of the Directive provides for the acquisition of the right of permanent residence by family members of a Union citizen to whom Articles 12(2) and 13(2) apply, if those family members satisfy the conditions therein, and have resided legally for a period of five consecutive years in the host Member State.

[43]Article 21 of the Directive states that continuity of residence may be attested by any means of proof in use in the host member State; but that it is broken by any expulsion decision duly enforced against the person concerned.

[44]I can now return to the WA. Article 16 of the WA was the subject of much discussion in the written and oral submissions of the parties in the present case. Article 16 provides as follows:- “Union citizens and United Kingdom nationals, and their respective family members, who before the end of the transition period resided legally in the host State in accordance with the conditions of Article 7 of Directive 2004/38/EC for a period of less than 5 years, shall have the right to acquire the right to reside permanently under the condition set out in Article 15 of this Agreement once they have completed the necessary periods of residence. Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence”.

[45]I have mentioned that Article 18 of the WA confers a power on the host state to require Union citizens and UK nationals and their family members to apply for a new residence status conferring the rights under Title II of Part Two. This power enables the United Kingdom and Member States to give effect to the citizens’ rights contained in Part Two by means of a “constitutive scheme”, whereby the rights in question must be conferred by the grant of residence status. This contrasts with a “declaratory scheme”, under which the rights under Title II arise automatically upon the fulfilment of the conditions necessary for their existence. Under a declaratory scheme, documentation confirming the right may be sought and provided. Such documentation, however, is not a prerequisite to the enjoyment of the right.

[46]The United Kingdom has chosen to adopt a constitutive scheme by exercising the power in Article 18(1) of the WA. So too have about half of the EU Member States.

[47]Article 18(1) provides as follows:- “1. 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.”

[48]Article 18(1) then sets out a number of conditions “for such a residence status”.

[49]Sub-paragraph (a) tells us that “the purpose of the application procedure” is to verify whether the applicant is entitled to the residence rights and, where that is the case, the applicant “shall have a right to be granted the residence status and the document evidencing that status”.

[50]Sub-paragraph (b) is as follows:- “(b) the deadline for submitting the application shall be not less than 6 months from the end of the transition period, for persons residing in the host State before the end of the transition period. For persons who have the right to commence residence after the end of the transition period in the host State in accordance with this Title, the deadline for submitting the application shall be 3 months after their arrival or the expiry of the deadline referred to in the first subparagraph, whichever is later”.

[51]Sub-paragraph (c) provides for an automatic extension by one year of “the deadline for submitting the application referred to in point (b)”, where the Union or the United Kingdom, as the case may be, has notified the other that technical problems have prevented registration of applications /issuing the certificates.

[52]Sub-paragraph (d) states that “where the deadline for submitting the application referred to in point (b) is not respected by the persons concerned”, the authorities are to assess “all the circumstances and reasons” for this, and they must allow such persons to submit an application “within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline”.

[53]There are fourteen further sub-paragraphs in Article 18(1). Before me, particular attention was drawn to sub-paragraph (n):- “(n) for cases other than those set out in points (k), (l) and (m), the host State shall not require applicants to present supporting documents that go beyond what is strictly necessary and proportionate to provide evidence that the conditions relating to the right of residence under this Title have been fulfilled;”.

[54]Sub-paragraph (k) specifies what the host State may require by way of documentation from Union citizens. Sub-paragraphs (l) and (m) do the same in respect of the various categories of family members.

[55]Article 18(2) states:- “2. During the period referred to in point (b) of paragraph 1 of this Article and its possible one-year extension under point (c) of that paragraph, all rights provided for in this Part shall be deemed to apply to Union citizens or United Kingdom nationals, their respective family members, and other persons residing in the host State, in accordance with the conditions and subject to the restrictions set out in Article 20”.

[56]Article 39 explains that the persons covered by Part Two enjoy the rights provided for in the relevant Titles of that Part “for their lifetime, unless they cease to meet the conditions set out in those Titles”.

[57]Finally, Article 158 of the WA enables the court or tribunal considering a case commenced at first instance within eight years from the end of the transition period to request the Court of Justice of the European Union to give a preliminary ruling on a question concerning the interpretation of Part Two of the WA. In such an eventuality, the CJEU has jurisdiction to give the preliminary ruling, the legal effects of which, “shall be the same as the legal effects of preliminary rulings given pursuant to Article 267 TFEU in the Union and its Member States.”

THE EUSS

[58]I turn to the EUSS. EU1 explains how the Appendix sets out the basis on which an EEA citizen and their family members will, if they apply under it, be granted indefinite leave to enter or remain or limited leave to enter or remain. Broadly speaking, EU2 and EU11 provide for a person to be given indefinite leave to enter or remain where (inter alia) the application is made by the required date (30 June 2021) and the person concerned has a documented right of permanent residence, without any supervening event having occurred.

[59]EU3, by contrast, provides for an applicant to be granted five years’ limited leave to enter or remain where the applicant does not meet the eligibility requirements for indefinite leave under EU11 but meets the eligibility requirements for limited leave in accordance with EU14. One of the conditions which brings a person within EU14 is that they are “not eligible for indefinite leave to enter or remain under paragraph EU11 of this Appendix solely because they have completed a continuous qualifying period of less than five years”.

[60]In both cases, an application may fall to be refused on grounds of suitability in accordance with EU15 or EU16.

[61]EU4 provides that where a person has been granted limited leave to enter or remain, they must continue to meet the eligibility requirements for that leave which they met at the date of application; or meet other eligibility requirements for limited leave in accordance with EU14 or EU14A.

[62]Section 33(2A) of the 1971 Act explains that a person is “settled in the United Kingdom” if they are “ordinarily resident there without being subject under the immigration laws to any restriction on the period for which [they] may remain”. Thus, a person with limited leave to remain is not settled, whereas a person with indefinite leave to remain is settled.

[63]The letters sent by the defendant to those who have been granted limited leave under EU3 state that such leave “is also referred to as pre-settled status”(original emphasis). E. INTERPRETING THE WA

[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.

[65]Although Article 31(2) and (3) require consideration to be given to agreements and the like between the parties, these provisions are not relevant to the present case, since neither the claimant nor the defendant (or the interveners) seek to rely upon any agreement or accepted instrument.

[66]Article 32 provides that recourse may be had to supplementary means of interpretation, including the preparatory work on the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31; or to determine the meaning, when the Article 31 exercise leaves that meaning ambiguous or obscure, or would lead to a result which is manifestly absurd or unreasonable. As I shall explain, the defendant seeks to rely in this regard on e-mail exchanges and information documents (including from the Commission), created both before and after the WA was signed. Mr Blundell told me, however, that the defendant did so in order to confirm what she says is the correct interpretation deriving from the Article 31 analysis, rather than because of any ambiguity, obscurity or absurdity in the terms of the WA.

[67]Article 33 of the Vienna Convention is headed “Interpretation of Treaties authenticated in two or more languages”. Article 33(1) states that where a treaty has been authenticated in two or more languages (which is the case with the WA) the text is equally authoritative in each language, unless the treaty provides or the parties agree that, in case of divergence, a particular text shall prevail. For the Commission, Mr Khan informed me that the WA has been authenticated in the official languages of the EU. The WA, was, however, negotiated between the EU and the United Kingdom by officials communicating in English.

[68]Relying upon Anthony Aust: Modern Treaty Law and Practice (2013) chapter 13, Mr Blundell submits that the determination of the ordinary meaning of a treaty cannot be undertaken in the abstract but only in the context of the treaty and in the light of its object and purpose. It is plain, moreover, that “context” for the purposes of Article 31 has a broader meaning than it would ordinarily bear in the context of a domestic interpretation.

[69]In Revenue and Customs Commissioners v Anson

[2015] UKSC 44

, Lord Reed had this to say about Articles 31 and 32:- “56. Put shortly, the aim of interpretation of a treaty is therefore to establish, by objective and rational means, the common intention which can be ascribed to the parties. That intention is ascertained by considering the ordinary meaning of the terms of the treaty in their context and in the light of the treaty's object and purpose. Subsequent agreement as to the interpretation of the treaty, and subsequent practice which establishes agreement between the parties, are also to be taken into account, together with any relevant rules of international law which apply in the relations between the parties. Recourse may also be had to a broader range of references in order to confirm the meaning arrived at on that approach, or if that approach leaves the meaning ambiguous or obscure, or leads to a result which is manifestly absurd or unreasonable.”

[70]More recently in the Supreme Court, Lord Briggs and Lord Leggatt stated at paragraph 16 of their judgment in Basfar v Wong

[2022] 3 WLR 208

that the provisions of an international treaty enacted into United Kingdom law fall to be interpreted “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.”

GIVING EFFECT TO THE WITHDRAWAL AGREEMENT

[71]The WA is given legal effect in the United Kingdom as a result of section 7A of the European Union (Withdrawal Act) 2018, which was inserted by section 5 of the European Union (Withdrawal Agreement) Act 2020. Section 7A provides that all rights created or arising by or under the WA are to be without further enactment given legal effect in the United Kingdom and to be recognised in domestic law; and that every enactment is to be read and have effect subject to the recognition of those rights. To similar effect, section 7B gives domestic legal effect to rights arising under the SA and the SCRA.

[72]Sections 7A and 7B are “relevant separation agreement law”, as provided in section 7C of the 2018 Act. Section 7C(1) provides that any question as to the validity, meaning or effect of any relevant separation agreement law is to be decided, so far as applicable, in accordance with the WA etc.

[73]The interpretation of the WA is dealt with in Article 4(3) of the WA, which provides that its provisions which refer to EU law or to concepts of provisions thereof are to be interpreted and applied in accordance with the methods and general principles of EU Law.

THE CASE FOR THE CLAIMANTS AND THE INTERVENERS

[74]I can now turn to the details of the grounds of challenge, brought by the claimant and supported by the Commission and by the3million Ltd. The claim concerns those individuals who have been granted five years’ limited leave to enter or remain; or who may be granted this in the future (this second group being likely to be small). The claimant contends that the grant of limited leave to this “limited leave” cohort fails to comply with the United Kingdom's obligations under the WA and the SA. Such individuals may lose their pre-settled status, along with all the rights which accompany it, for reasons which the WA and the SA do not permit.

[75]The way this may happen is as follows. An individual with limited leave to remain for five years must make a fresh application within that period, either for indefinite leave to remain (i.e. settled status) under the EUSS, once they meet the requirements for the grant of that status, or for a further period of limited (pre-settled) leave. Should they fail to do either, the effect of the 1971 Act is that they will become unlawfully present in the United Kingdom. As a result, they will be exposed to serious consequences, affecting their right to live, work and access social security support.

[76]It is estimated that the total number of those granted pre-settled status up to 30 September 2021 is approximately 2.2 million. The total number of individuals liable to be affected by the consequences of being unlawfully present in the United Kingdom is the subset of those individuals with pre-settled status who subsequently fail to make a second application for leave.

[77]The earliest point in time at which an individual with pre-settled status will be exposed to these consequences of the 1971 Act is August 2023, which is five years from the earliest grants of pre-settled status by the defendant.

[78]The claimant argues that the right of residence conferred by the WA (and the SA), once obtained, does not expire unless it is lost, pursuant to the terms of those Agreements. By granting limited leave to remain under the 1971 Act to those with pre-settled status, the defendant has failed to give effect to the rights conferred by the WA and SA in respect of persons not having the right of permanent residence, because the limitation on leave (with the consequences just mentioned if the individual does not actively secure the grant of further leave from the defendant) constrains the right of residence created by the WA. I shall call this the first issue.

[79]The claimant also contends that the right of permanent residence under Article 15 accrues automatically, once the conditions for obtaining it have been fulfilled by the individual concerned. Whilst there can be no objection to an administrative procedure by which EU citizens must make an application for recognition of the right of permanent residence, supported by evidence that the relevant conditions have been fulfilled, the claimant says it is unlawful for the defendant to withdraw a right of continued residence beyond five years by reason of a failure of an individual to make any such application. I shall call this the second issue.

[80]On the first issue, the claimant relies upon Article 13 of the WA; in particular, Article 13(4), whereby the host State “may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title”.

[81]As for the right of permanent residence, the claimant points to Article 15 of the WA, in which it is stated that Union citizens and their family members who have resided legally in the host state in accordance with Union law for a continuous period of five years or for the period specified in Article 17 of the Directive “shall have the right to reside permanently in the host State” subject to the conditions set out in Articles 16 to 18 of the Directive.

[82]The claimant acknowledges that Article 18 of the WA provides for the United Kingdom to employ a constitutive scheme for giving effect to the WA. The claimant contends, however, that the adoption of a constitutive scheme by the defendant cannot excuse the defendant’s actions. Article 4(1) of the WA provides that the provisions of Union law made applicable by it shall produce in respect of and in the United Kingdom the same legal affects as those that they produce within the Union and its Member States. Article 4(2) requires the United Kingdom to ensure compliance with Article 4(1) through domestic legislation “including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible positions”. Similar provision is made in Article 4 of the SA.

[83]The constitutive scheme for which provision is made in Article 18 of the WA provides, the claimant says, for the making only of a single application. The defendant has wrongly interpreted the WA as entitling the United Kingdom to require an EU citizen to make two applications for relevant residence status, whereby the first application results in the grant of limited leave (pre-settled status) if the five year residence period is not yet completed. The claimant says there is nothing in the WA to permit the United Kingdom to require a second application from the holder of limited leave, either to extend that limited leave or to upgrade it to indefinite leave to remain, failing either of which the underlying right of residence conferred by the WA is lost.

[84]The application permitted by Article 18(1) is intended to establish if the applicant is entitled to “the rights” under Title II. Mr Palmer emphasises the use of the plural. If the application is successful, those “rights” are conferred on the applicant. At this point, the claimant says that the “rights” in question include, in the case with which we are concerned, the rights of residence conferred by Article 13 and the contingent right to acquire the permanent right of residence in accordance with Article 15. Upon satisfying the conditions in that Article, the status of permanent residence is acquired automatically. In this regard, the claimant seeks to draw a parallel with the right of permanent residence contained in Article 16 of the Directive, as explained by the CJEU in Dias (

case C-325/09

(at paragraph 57)), where the Court emphasised that a period of five years’ continuous legal residence confers on an EU citizen “the right of permanent residence with effect from the actual moment at which [the period of continuous legal residence in question is] completed”.

[85]The Commission considers that the right of permanent residence under Article 16 of the Directive and the right of residence under Article 7 of the Directive are both expressions of the status of legal residence and are not different in nature. The right of permanent residence regulated by Article 16 is a right of legal residence without the conditions imposed by Article 7(1). The term “permanent residence”, according to the Commission, does not refer to a residence right of a different nature or to a different residence status but, rather, to the specific conditions of exercise of the rights and of retention of the status of legal residence for EU citizens qualifying for that particular right of residence.

[86]The Commission submits that permanent residence under Article 15 of the WA is governed by the same rules and logic as permanent residence under the Directive. Article 15(1) of the WA essentially replicates Article 16(1) of the Directive. Both state in terms that a person who has been legally resident for a continuous period of five years “shall have” the right of permanent residence.

[87]The Commission is clear that the prohibition contained in Article 13(4) of the WA on imposing any limitations or conditions for obtaining, retaining or losing residence rights applies both to substantive provisions, such as the duration of the WA status and to procedural requirements, such as the need for a new application. Article 39 of the WA is clear: beneficiaries enjoy the rights provided in the relevant Titles of Part Two of the WA for as long as they meet the relevant conditions. Thus, absent a change in circumstances, protection is life-long. Just as with legal residence under the Directive, the residence status under the WA can be lost only in situations for which express provision is made in the WA. The WA does not provide any other way for a host State to revoke a person's WA beneficiary status or treat that status, or a right attached to it, as having been lost.

[88]As for the effects of the United Kingdom’s decision to adopt a constitutive scheme, the Commission considers that what are conferred by the new residence status in Article 18(1) are all the rights granted in Title II of Part Two; namely, the rights provided for in Articles 13 to 29 of the WA, which include the right of non-permanent residence and that of permanent residence. There is, therefore, only one new residence status under the WA: that of WA beneficiary, to which all the relevant rights are attached. Different rights will be relevant at different times, depending on the personal situation of the beneficiary. Although every eligible person who successfully goes through the application process will be granted WA beneficiary status, the Commission considers that one beneficiary may have a non-permanent right of residence at the moment of conferral, whilst another may have already acquired the right of permanent residence. One beneficiary may have a residence right as a student, another as a worker, and yet another as a non-economically active person. Their status under the WA, however, is the same.

[89]Accordingly, the Commission considers that the difference between the declaratory and constitutive residence schemes lies merely in how access is given to WA beneficiary status. Once such status has been obtained, the rights attached to it operate in the same way, under both schemes.

[90]The Commission argues that this result follows not only from the express wording of Article 18(1) but also from the fact that Article 18 makes provision for only one application for each person concerned. Once the obligation on a person under Article 18(1) to “stand up and be counted” by applying for WA beneficiary status has been discharged, and they have been granted the “new residence status”, the person concerned cannot be required to make a new application, once they have accumulated the necessary five years of legal residence, in order to obtain permanent residence under Article 15. Nor can they lose their beneficiary status if they fail to do so. Pre-settled and settled status under the EUSS cannot constitute two different statuses under the WA but must merely be understood to reflect whether, at the time of application, the person concerned had or had not yet acquired the right of permanent residence. By reason of Articles 13(4) and 39 of the WA, a pre-settled status holder’s residence right must not expire but must continue to exist for as long as the pre-settled status holder meets the relevant residence conditions. The defendant’s requirement that a person apply for settled status before pre-settled status expires amounts to an additional condition for retaining residence rights, contrary to Article 13(4).

[91]In its written submissions, the3million Ltd argues that the defendant’s stated aim of avoiding uncertainty as to the legality of an individual’s residence, which otherwise would require the host State to undertake repeated checks as to the individual status, has to be seen in the light of the defendant’s decision to grant leave under the EUSS by reference to residence in the United Kingdom simpliciter at the expiry of the transition period, rather than residence in the exercise of EU Treaty rights. The3million Ltd say this means that persons “already do not know whether they are considered by the defendant to have WA rights without subsequent examination by an official”. In this regard, the 3Million Limited draws attention to the fact that eligibility for universal credit and other benefits depends on the individual being able to demonstrate a right to reside; and that this right specifically does not include having pre-settled status under the EUSS: Fratila v Secretary of State for Work and Pensions

[2021] UKSC 53

[92]The 3Million Limited denies that, by adopting a constitutive scheme, the defendant is able to insist upon subsequent applications, with the negative consequences for an individual with limited leave who does not make such an application. Choosing to implement the constitutive scheme does not, in short, entitle the defendant to confer limited leave on the cohort in question, with all that entails. It was always open to the defendant to have introduced any necessary amendments to the United Kingdom's immigration legal framework in order to secure the lawful implementation of the WA.

[93]The 3Million Ltd says that the claimant’s construction of the WA does not mean there was no point in the defendant’s requiring people to apply under Article 18. The purpose of that provision was to ensure that individuals were significantly incentivised in order to apply under the EUSS. The 3Million Limited submits that this creates “a bright line between those who have obtained WA status and protection and those who have not”. In the latter case, no rights under the WA are conferred. This permitted the United Kingdom to put in place a deadline in order to generate “public ‘buy-in” via a major communications campaign. It ensured that all those individuals would then be registered and documented”. This did not, however, permit or necessitate a requirement to apply for further status after five years.

THE DEFENDANT’S CASE

[94]The defendant stresses that the United Kingdom's exit from the EU has resulted in a fundamental change to this country's legal order. At the end of the transition period on 31 December 2020, EU law ceased to apply in the United Kingdom. At that point, EU citizens no longer enjoy free movement rights in the United Kingdom, as they had up to that point because of EU law.

[95]The defendant emphasises the fact that the WA is not EU law. Rather, it introduces its own body of law. Although the WA applies certain provisions of EU free movement law, the WA is clear that it is only those provisions that are to be interpreted and applied in accordance with EU law: see Article 4. The bespoke system of residence rights, which the WA creates, is confined to the single State in which EU law rights to reside were exercised before the end of the transition period. Even where EU law is specifically applied by the WA, that law nevertheless applies subject to other relevant provisions of the WA.

[96]The defendant points to the judgment of the CJEU in Préfet du Gers and Institut national de la statistique et des études économiques (9 June 2022) (

case C-673/20

) as a recognition by that Court of the fundamental changes arising from the United Kingdom’s EU exit. In that case, the CJEU held that a British citizen resident in France could no longer rely upon her status as an EU citizen in order to be entitled to vote in French elections. The Court observed that the WA does not contain anything which suggests that a right to vote was conferred on such citizens, or on EU citizens residing in the United Kingdom.

[97]The defendant also places great emphasis on the fact that the United Kingdom has chosen to exercise its powers under Article 18 of the WA, in order to give effect to the WA by means of a constitutive residence scheme. The scheme comprises the EUSS. The defendant points out that the scheme is more generous than is required by the WA, in that the EUSS relies on mere residence in the United Kingdom, as opposed to residence in pursuance of the EU right of free movement.

[98]The defendant submits that it is critical to her case that the constitutive scheme gives rise to rights under the WA, as opposed to those rights arising automatically upon the fulfilment of the relevant conditions. EU rights of free movement for EU citizens and their family members (but not for extended or “other” family members) arise automatically. In Secretary of State for Work and Pension v Dias the CJEU described the position as follows:- “48. As the Court has held on numerous occasions, the right of nationals of a Member State to enter the territory of another Member State and to reside there for the purposes intended by the EC Treaty is a right conferred directly by the Treaty, or, as the case may be, by the provisions adopted for its implementation. The grant of a residence permit to a national of a Member State is to be regarded, not as a measure giving rise to rights, but as a measure by a Member State serving to prove the individual position of a national of another Member State with regard to provisions of European Union law (see

Case C-408/03

Commission v Belgium

[2006] ECR I-2647

, paragraphs 62 and 63 and case-law cited). 49. Such a declaratory, as opposed to a constitutive, character of residence permits, in regard to rights, has been acknowledged by the Court independently of the fact that the permit in question was issued pursuant to the provisions of Directive 68/360 or Directive 90/364 (see, to that effect, Commission v Belgium, paragraph 65).”

[99]The defendant contends that the case advanced by the claimant and supported by the Commission, is that Article 18 of the WA merely envisages a “gateway” application, such that(a) without a successful application, a person cannot enjoy rights under the WA at all; but

(b) once they make such an application, the system reverts to a “declaratory” one, which is to all intents and purposes the same as existed before the end of the transition period. As a result, all that a successful Article 18 application shows, according to the defendant, is that the individual is capable of enjoying a right to reside under the WA. However, in order to know whether they actually enjoy such a right, it is necessary, just as it was before the end of the transition period, to examine their circumstances to see if they still fall within scope and meet the underlying conditions of the right of residence concerned. That interpretation has, the defendant says, the consequence that an individual will, in certain circumstances, continue to reside lawfully under the WA, regardless of the lack of any status under domestic law. The defendant submits that this is wrong. The claimant’s construction would result in a continued state of uncertainty as to whether an EU citizen enjoys any right to reside in the United Kingdom and, even if they do, as to the nature and content of that right. This has significant consequences in practice.

[100]The defendant says that the declaratory system, such as she asserts would arise from an acceptance of the case put forward by the claimant and the Commission, would give rise to inherent uncertainty about whether a person enjoys a right to reside in the United Kingdom. It would always be necessary to perform a fact-sensitive analysis of their circumstances on any given date, in order to decide whether they enjoy such a right. The position of the United Kingdom government, from the outset, is said to have been 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. This is said to have been demonstrated by the experience of certain members of the “Windrush generation”, who 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 United Kingdom.

[101]The defendant emphasises that those holding pre-settled status will be reminded of the need to apply for settled status before the expiry of their pre-settled status. They will be permitted to submit a late application if they have reasonable grounds for missing the relevant deadlines. Rights will be protected as soon as a valid application is made (whether intime or not). Furthermore, the intention is to continue to support vulnerable individuals with pre-settled status, so that they are able to apply for settled status. The defendant says that “further details will be announced in due course” (skeleton argument, paragraph 31).

[102]Mr Blundell and Ms Smyth next address Articles 13 to 18 of the WA in detail. Article 13(1) provides that EU citizens shall have the right to reside under the limitations and conditions set out in specified Articles of the Directive. As I have described above, these include the right to reside for up to three months without formalities, the right to reside for longer than that period if a worker, self-employed, etc; the right to reside for those temporarily unable to work; and (in Article 16 of the Directive) the right of permanent residence for those who have resided for five years in accordance with the Directive. Article 13(2) and (3) make corresponding provision for the right to reside in respect of certain family members.

[103]I have already noted that Article 13(4) provides the host State “may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title”; and there is specifically said to be “no discretion in applying the limitations and conditions” other than in favour of the person concerned.

[104]In response to the argument of the claimant and the Commission that the grant of limited leave to remain for those with pre-settled status violates Article 13(4), the defendant submits that this is an inevitable consequence of adopting a constitutive residence scheme under Article 18; and that the United Kingdom has a right to regulate the procedure by which that scheme operates. The grant of limited leave to remain for those with pre-settled status is a procedural matter, not governed by Article 13(4). Since the defendant’s system under the EUSS is authorised by Article 18, Article 13(4) must be read as being subject to what is permitted by Article 18.

[105]In this regard, Mr Blundell draws attention to Article 14(2). This provides no exit visa shall be required of holders of a valid document issued in accordance with Article 18 or 26. By inference, Mr Blundell submits Article 14(2) shows that procedural matters are otherwise outside the scope of the WA.

[106]As for Article 15 (right of permanent residence), Mr Blundell acknowledges that this right, albeit created by the WA, has been “borrowed” from the Directive. It remains, however, a right of residence, not a right of free movement. This is emphasised by Article 15(3) which provides for the right to be lost “only through absence... for a period exceeding 5 consecutive years”. This contrasts with the two years referred to in the Directive and is explained by the fact that a right of free movement, once lost, can be re-acquired as a result of compliance with relevant conditions of the Directive. By contrast, the right of permanent residence under the WA, once lost, cannot be regained.

[107]The interpretation of Article 16 is a key area of dispute between the parties. As we have seen, Article 16 deals with the position of those who before the end of the transition period had resided legally in accordance with Article 7 of the Directive for a period of less than five years. They “shall have the right to acquire the right to reside permanently under... Article 15… once they have completed the necessary periods of residence”.

[108]The defendant places emphasis on the words which in the English version of the WA:

“shall have the right to acquire the right to reside permanently…”

. She also draws attention to the closing words:

“necessary for acquisition of the right of permanent residence”

. The defendant submits that, in the case of a constitutive scheme such as that adopted by her, the right to which Article 16 refers is only acquired if it is conferred by her, following an application.

[109]The defendant says it is wrong to contend that “the right to acquire the right” of permanent residence under Article 16 is one of the package of residence rights for which provision is made in Article 13(1), with the result that - once the five year condition is satisfied - the right of permanent residence is acquired, without the need for any discrete application. The Article 16 right is, the defendant says, entirely contingent upon the satisfaction of a condition, which may or may not happen. This is reinforced by the phrase “once they have completed the necessary periods of residence”. Furthermore, since Article 17 (status and changes) makes express provision for the rights of EU citizens to rely directly on Part Two not to be affected when they change status (e.g. as between student and worker), the lack of any corresponding provision in respect of Article 16 reinforces the latter's contingent nature.

[110]Although I have already described in broad terms the defendant’s reliance upon Article 18 of the WA, it is necessary to say more about her position. If the system is intended to operate as the claimant and the Commission suggest, the defendant submits there is little point in requiring an initial application at all. It makes little sense to impose requirements on EU citizens and their family members to make an application and for a State to dedicate substantial resources to establishing an applications and documentation process and conducting the detailed task of verifying and examining applications, only for the end result to be the grant which confirms a qualifying status only, as opposed to an actual right of residence. All manner of practical difficulties would, the defendant says, arise if that were right. An individual could not be sure of the legality of their residence. The host State might need to undertake repeated checks as to their status. One could not even be sure that Article 18 “beneficiary status” is held by an individual. The claimant thus contends for the worst of both worlds, requiring the investment by the defendant of considerable resources into designing and establishing an applications-based regime, all for a status which does not confer any concrete rights of residence and which cannot even be taken as confirmation of present beneficiary status.

[111]By contrast, the interpretation proposed by the defendant involves a real benefit, not only for EU citizens and their family members but for economic operators and public authorities, who need to be clear about the status of the person concerned. There is nothing confusing in providing for a further application upon expiry of “limited leave”. The defendant says that “even its name makes clear that the leave is temporary only” (skeleton, paragraph 68.3). There is nothing inherently problematic about the defendant using the system established by the 1971 Act, which has operated satisfactorily in the domestic immigration context for many years.

[112]The defendant submits that Article 18(1)(a) does not state that the purpose of the application is simply to determine whether the individual falls within the scope of the WA. Mr Blundell draws attention to the words “evidencing that status” at the end of Article 18(1)(a). The “status”, he says, can be either that under Article 13 or that under Article 15.

[113]Article 18(1)(n) imposes a requirement for applicants to “provide evidence that the conditions relating to the right of residence under this Title have been fulfilled”. If the purpose of the application procedure was simply to determine whether a person fell within the scope of the WA, the defendant says that Article 18 (1)(n) would have required an applicant simply to provide evidence that the requirements of Title II of Part Two were satisfied. This means the fundamental purpose of the new status was to confer “actual residence rights, not merely to confirm that a person is in scope of such rights”.

[114]The claimant and the Commission emphasise Article 18(1)(a) to (d) of the WA, which in their view make it plain that only a single application process is permitted by Article 18. The defendant submits this is wrong. The fact that the WA does not specify a deadline for later applications does not mean that later applications cannot be required. It simply means that the WA does not regulate the timescales for such applications, leaving that to national law. The reason for providing a deadline for an initial application was, the defendant says, to avoid a “cliff-edge” at the end of the transition period. Consistently with the principle of procedural autonomy under national law, the contracting parties simply did not need to regulate the detail of later application processes (subject to general provisions, such as Article 18(1)(e), which requires the avoidance of unnecessary administrative burdens).

[115]The defendant submits that provisions are missing from the WA, which would have been included if the claimant is right that the system reverts to being fundamentally declaratory, following the grant of the initial Article 18 application. Although various provisions of the Directive were “imported” by the WA, Article 25 of the Directive was not. Article 25 specifically provides that possession of residence documentation cannot be the precondition for the exercise of a residence right; and that lawful residence can be established “by any other means of proof”. If the constitutive residence scheme introduced by the WA merely permitted the defendant to require an “initial gateway” type of application, then the defendant says it fails to protect EU citizens in constitutive residence schemes in the same way as beneficiaries of the Directive are protected. It would, for example, be open to an economic operator or public authority to insist on an EU citizen in the United Kingdom providing a particular type of proof that they have a right to reside. Furthermore, if the Article 13 residence right automatically “upgrades” to a right of permanent residence, then, again, the WA has included nothing akin to Article 25 in order to protect those enjoying such a right. The WA, by contrast, leaves that cohort without any right to insist on a document confirming their permanent residence status. This admission is all the more striking because Article 18(4) of the WA does include special provision akin to Article 25 for States which do not establish a constitutive scheme.

THE EXTRANEOUS MATERIALS

[116]I turn to the extraneous materials. The defendant contends that these materials confirm her interpretation of the WA, as permitted by the Vienna Convention. She submits that the materials show the United Kingdom government has consistently adopted a position that an application would be required in order to renew pre-settled status and/or to acquire settled status; and that the Commission has been well aware of that position.

[117]The claimant and the Commission say that, insofar as the exchanges between officials and informative guides emanating from the Commission might seem to support the defendant’s case, they were the product of misunderstandings, which cannot be used to give the WA a different and incorrect meaning.

[118]The materials on which the defendant relies are as follows. On 5 December 2017, there was an e-mail exchange between the Commission's negotiator on residence rights and an official of the defendant. The Commission's negotiator said:- “Whilst waiting for something to happen, a question came to my mind: will persons who need to apply for temporary status also be given a document proving their rights under the WA? I guess so, since the main argument for the new Status has been that it will be the only pragmatic way to identify those who are covered by the WA. So, in my understanding, the procedure for temporary status will be for the Home Office to check that conditions for lawful residence are fulfilled, issue a document certifying this, and then this procedure will happen again after the 5 years necessary for settled status.

[119]The Home Office official’s response was:- “Yes, that’s right. Everyone who applies and qualifies for protection under the WA will get a document confirming their status. …”

[120]A Commission memo of May 2018 containing “Questions and answers - the Rights of EU and UK citizens, as outlined in the draft Withdrawal Agreement” had the following question:- “We are hearing a lot about the new UK residence status called “settled status”. Will it apply to EU citizens after the end of the transition period and what will it mean?”.

[121]The answer was:- All EU citizens and their family members residing in the UK will have to apply for a new UK residence status within 6 months following the end of the transition period in order to be able to stay in the UK. This new status can either be “settled status” or “pre-settled status” depending on how long you have already been living in the UK at the time of application. To get “settled status” you and your family must have been lawfully living in the UK for at least 5 years at the time of your application… If you are not able to apply straight away for “settled status” because you do not have a least 5 years residence, you will be eligible to apply for “pre-settled status”. This status will allow you to build up the required five years to later apply for “settled status”.”

[122]This document was written before the conclusion of the WA. So too was the later Questions and Answers memo of 26 November 2018. This stated in terms that it was for “information purposes only” and that the WA “needs to be ratified by both the UK and the EU for its entry into force”.

[123]One of the questions was:- “I am Czech and I arrived in the UK 2 years ago. I work in a local hospital. Can I stay after the UK leaves the EU?

[124]The answer contained the following: - “You will continue to have residence rights after the end of the transition period: you will keep your residence under essentially the same substantive conditions provided by EU free movement law, although to this affect you will need to make an application to the UK authorities for your new UK residence status. Once you have accumulated five years of legal residence in the UK, you will be able to apply for your residence status in the UK to be upgraded to a permanent one that offers more rights and better protection.”

[125]A Questions and Answers memo, describing the situation as at 1 January 2021 (i.e. well after the conclusion of the WA), has the following question:- “I am Czech and I arrived in the UK in 2017. I work in a local hospital. Can I stay after 31 December 2020?

[126]The answer is:- “Yes. If you continue to work… then you can stay in the UK after the end of the transition period. You have the right to reside in the UK under the Withdrawal Agreement after the end of the transition period. To keep your residence, you must comply with essentially the same substantive conditions as were applicable before the end of the transition period by EU Law on free movement of EU citizens. You need to make an application to the UK authorities for your new UK status before the end of the grace period. Once you have accumulated 5 years of legal residence in the UK, you will be able to apply for your residence status in the UK to be upgraded to a permanent one that offers more rights and better protection.”

[127]The defendant submits that these materials make it plain that the Commission fully understood that the WA effectively means a person with pre-settled status needs to make an application in order to obtain settled status in the United Kingdom. The defendant says the Commission was correct in that understanding and its present stance is therefore mistaken. J. DISCUSSION

[128]The WA has been given the force of law by the United Kingdom Parliament by means of section 7A of the 2018 Act. It is therefore the task of this court to interpret the WA.

[129]In so doing, the guiding interpretative instrument is the Vienna Convention. Under that Convention, this court’s duty is to interpret the WA “in good faith in accordance with the ordinary meaning to be given to the terms of [the WA] in their context and in the light of [the WA’s] object and purpose”: Article 31(1).

[130]There can be no doubt that, as Mr Blundell says, a new legal order has arisen in the United Kingdom, as a result of this country's withdrawal from the EU. Neither the claimant nor the Commission seeks to suggest otherwise. Indeed, the fourth recital to the WA states in terms that “subject to the arrangements laid down in this Agreement, the law of the Union … in its entirety ceases to apply to the United Kingdom from the date of entry into force of this Agreement”.

[131]Article 4(3) of the WA provides that “the provisions of this Agreement referring to Union law or to concepts or provisions thereof shall be interpreted and applied in accordance with the methods and general principles of Union law”. To that extent, the fact that the United Kingdom has left the EU does not mean EU legal concepts must be ignored; indeed, the contrary is the case. Otherwise, however, EU legal concepts such as free movement are not to be imported into, or inferred from, the WA, except insofar as that may be necessary in order to comply with the general rule of interpretation in Article 31 of the Vienna Convention.

[132]That last sentence needs a little elaboration. In interpreting the WA, what the parties meant may need to be considered against the relevant background, which is part of the “context” mentioned in Article 31 of the Vienna Convention. In the present case, that background is EU law, which applied to the United Kingdom whilst it was a member (and for a period thereafter). As we have seen from paragraphs 85 and 106 above, both the claimant and the defendant acknowledge that, in Mr Blundell’s phrase, the right of permanent residence in Article 15 of the WA has been “borrowed” from Article 16 of the Directive. This may tell us something about the nature of the right of permanent residence in the WA, when interpreting the WA in accordance with the Vienna Convention. This is, however, quite different from saying that general concepts such as the right of free movement must be lurking beneath the words of the WA, to be called forth even if these words would not otherwise warrant it.

[133]I agree with the defendant that the “residence rights” created by Article 13 of the WA are not free movement rights. Mr Palmer did not contend to the contrary. This is so, notwithstanding that the rights described in Article 13 contain limitations and conditions set out in the Directive.

[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.

[135]The defendant seeks to place great store on the fact that the claimant and the Commission argue for an interpretation of Article 18 of the WA, which entails an individual who has been given pre-settled residence status by the defendant under Article 18, automatically obtaining the right of permanent residence under Article 15, upon completion of the necessary five-year period of residence. The defendant says 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 WA at the time of the application” may be a “status” but, the defendant says, it is not a “residence status” (skeleton paragraph 61.1). The point of the constitutive scheme envisaged by Article 18(1) is, according to the defendant, to confer actual residence rights, not merely a gateway or qualifying right. In contrast, the defendant maintains that her interpretation is consistent with the language of Article 18(1) and that the status granted under the EUSS, whether it be pre-settled or settled, is a residence status in the true sense, which confers residence rights. The grant of limited or indefinite leave itself confers the relevant right to reside (skeleton, paragraph 62).

[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. The first issue

[137]I therefore need to address first the issue of whether the defendant 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, be that limited leave or indefinite leave.

[138]The difficulty for the defendant centres on Article 13 of the WA. Once it is accepted by the defendant that rights of residence as described in Article 13 are conferred under the constitutive scheme, attention must turn 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 defendant argues that this prohibition must be read as applying to substantive limitations and conditions. 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, according to the defendant, not a substantive limitation or condition. It is merely procedural.

[139]The defendant also contends that Article 13 is subject to Article 18. As paragraph 63 of the defendant’s skeleton has it, “no right is acquired at all in the absence of a successful application for it”. This 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”.

[140]As the claimant points out, the consequence under the 1971 Act of limited leave coming to an end, without being followed by further leave, is extremely serious. The person concerned becomes an overstayer, who from that point is in the United Kingdom unlawfully. A person who knowingly remains beyond the time limited by the leave commits a criminal offence: section 24 of the 1971 Act. There is no legal ability to work or claim certain benefits.

[141]In my judgment, these consequences cannot be brushed aside as merely procedural matters. They are inherent in the system of immigration control laid down by the Immigration Acts.

[142]The fact that, apart from the obvious temporal element, there are significant differences of substance between limited and indefinite leave is underscored by section 3 of the 1971 Act. Section 3(1)(b) and (c) and (3) empower the defendant to impose conditions, restricting the activities of a person who is subject to limited leave, or requiring them to do certain things. Such conditions may not be imposed on a person who enjoys indefinite leave. The defendant’s assurance that she would not in practice impose a condition relating to, for example, the minimum income that must be earned by a person with pre-settled status does not change the legal nature of limited leave and the legal consequences of such leave coming to an end.

[143]Whether someone has limited or unlimited leave is (along with ordinary residence) the determinant of whether that person is “settled” for the purposes of the 1971 Act: section 33(2A). A child born in the United Kingdom to a person who is settled becomes a British citizen at birth: section 1(1)(b) of the British Nationality Act 1981. That is not the case if the parent has only limited leave.

[144]The defendant says that a person with limited leave to remain as result of their pre-settled status can apply for indefinite leave (once the five-year requirement is met) or for further limited leave, where the requirement is not met but the person concerned remains in possession of an Article 13 right. She emphasises that such a person’s rights will be protected as soon as a valid application is made. I assume the defendant has in mind section 3C of the 1971 Act, which extends a person’s limited leave, upon an application being made for further leave before the expiry of their current leave, until that application is decided. I accept that section 3C has this effect. The fact remains, however, that a person who, for whatever reason, does not seek such further leave faces the consequences I have described; and those consequences are not merely procedural in nature.

[145]There is no reason to doubt the defendant will, as she says, support vulnerable individuals with pre-settled status in order to apply for settled status. But this does not permit the court to construe Article 13(4) so as to run counter to the ordinary meaning of the words, seen in the light of the object and purpose of the WA. Not only is limited leave in these circumstances a “limitation” on retaining residence rights; the requirement to apply for further leave is itself “a condition” for retaining such rights. Both are precluded by Article 13(4).

[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.

[151]As I have already said, at this stage of the discussion I am considering whether the defendant is correct to contend that those who have been granted rights under Article 13 by the operation of the constitutive scheme may lose those rights at the end of the period of limited leave. Whether those rights include the right automatically to enjoy the right of permanent residence once the five year requirement is satisfied is, in my view, an irrelevant question at this stage. In oral submissions, Mr Palmer accepted this point. Mr Blundell did not. The fact that the two issues are distinct is, however, plain. A person who becomes, in the language of Article 16, entitled to “the right to acquire the right to reside permanently …” does not thereby lose the pre-existing conditional right of residence under Article 13, so as to be left with nothing at all if they fail to apply for and be granted the right of permanent residence. Such an interpretation of the WA would be wholly contrary to its language and obvious intent. Accordingly, even if the defendant were to succeed in showing that the right of permanent residence needs in all cases to be conferred through the constitutive scheme, she could not derive anything from this success to support her submission that a person with pre-settled status loses their conditional right to reside under Article 13, if they fail to apply for and obtain further leave, of whatever kind.

[152]On this issue, the defendant cannot gain any support from the extraneous materials. The passages I have cited above, which were relied on by Mr Blundell, show that, both before and after signing of the WA, the Commission was of the view that an application for permanent residence would need to be made by a person with pre-settled status, in order to enjoy the right of permanent residence. By contrast, there is nothing in the materials that shows the Commission or its officials thought a person’s rights under the WA were limited by the nature and consequences of the grant of limited leave.

[153]The closest one comes is the exchange recorded at paragraphs 118 and 119 above; in particular, the reference by the Commission’s negotiator to “persons who need to apply for temporary status” being given “a document proving their rights under the WA” and the understanding of the negotiator that “this procedure will happen again after the 5 years necessary for settled status”. There is, however, no necessary inference from this exchange that the Commission understood, let alone accepted, the possibility of a total loss of rights if the procedure did not “happen again”. The topic being discussed was whether those with pre-settled status would be documented by the defendant. On that, the reply of the Home Office official was clear that “(e)veryone who applies and qualifies under the WA will get a document confirming their status”. There was nothing in this reply to suggest that this status was liable to be terminated as a consequence of the operation of the 1971 Act.

[154]In reaching my conclusion on this issue, I have had regard to the defendant’s emphasis upon the desirability of having a residence scheme which brings certainty for individuals, economic operators and public authorities. I have already referred to the obvious uncertainty for a person who finds themselves without leave. There is, however, more to be said on the subject of certainty. The defendant refers to the experience of certain members of the “Windrush” generation, whose lack of documentation later led, in some cases, to the most serious consequences. The defendant says it is in the interests of immigrants and those with whom they come into contact (including employers) to be in possession of documents evidencing their status in the United Kingdom. The defendant also argues that to accept the case for the claimant and the Commission would render the defendant’s adoption of the constitutive residence scheme of little or no practical utility.

[155]I shall return to these matters later, when considering whether contrary – to the assumption I am currently making for the purposes of this first issue – the claimant and the Commission are correct to say that, upon satisfying the five-year condition, a person with pre-settled status automatically enjoys the Article 15 right of permanent residence.

[156]The concept of certainty is a relative one, as the claimant and the3million Ltd point out. The defendant herself makes the point that the grant of limited leave under the EUSS represents no more than a “snapshot” of the applicant’s position at the time the decision on the application is made. In any event, the pursuit of certainty under a constitutive residence scheme cannot affect the nature of the rights of residence conferred by the WA. A person with Article 13 residence rights falling short of permanent residence is entitled to reside in the United Kingdom for as long as the relevant limitations and conditions in the Directive are satisfied. That is an inherent feature of the rights conferred by Article 13(1) to (3).

[157]Finally on this issue, there was some dispute between the claimant and the defendant as to the nature and extent of the cohort of persons who are given limited leave under the EUSS but whose residency is such that they do not (on any view) become eligible to acquire a right of permanent residence during their five-year period of limited leave. The defendant casts doubt on the existence of this cohort but argues, in the alternative, that it should in any event be left to be examined “in a case where it actually arises” (skeleton, paragraph 50).

[158]I am satisfied that what the claimant has to say on this aspect is right and that an individual may not qualify for permanent residence; for example, because of an absence that breaks continuity of residence before 31 December 2020, as provided in Article 15(2) of the WA, with the result that they must make a further application for limited leave before the expiry of the initial five-year period of limited leave. Regardless of this, however, the important point remains that a person who acquires a residence right under Article 13(1) and who continues to meet the relevant limitations and conditions – for example as a worker – cannot lose that right otherwise than as provided for in Title II of Part Two of the WA. To repeat, this is so, even if the defendant is right in her contention that an individual cannot acquire a right of permanent residence under the WA except by making an application to the defendant. The second issue

[159]I therefore turn to the second issue. It concerns the meaning of Article 18 of the WA; in particular, what is meant by the “new residence status” which confers “the rights under this Title”. The defendant submits that the claimant and the Commission are 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 defendant for the grant of permanent residence.

[160]Mr Khan’s written submissions on behalf of the Commission argue that the objective of an application in a constitutive scheme is the granting of a new residence status. The Commission’s concept of a “WA beneficiary” derives from the wording of Article 18(1):

“residence status which confers the rights under this Title”

. The rights under Title II of Part Two comprise, in Mr Khan’s description, the “chapeau” of Article 18(1); that is to say, the rights provided for in Articles 13-29 of the WA. These rights “include the right of non-permanent residence and that of permanent residence”. As a result, there is “only one residence status under the WA, that of WA beneficiary, to which all the rights in Title II are attached”. Different rights amongst these are said to be “relevant” at particular moments, depending on the personal situation of the beneficiary.

[161]Both the claimant and the defendant seek to draw support from the language of Article 18. Mr Palmer emphasises the fact that “the new residence status” is referred to in the singular, whereas that status confers “rights” (plural). One of those rights, Mr Palmer says, is the right of Union citizens and their family members “who have resided legally” in the United Kingdom, “for a continuous period of 5 years…” to have the right to “reside permanently”: Article 15(1).

[162]For his part, Mr Blundell submits the words “that status” in Article 18(1)(a) refer to either Article 13 status or Article 15 status. A person who had already achieved the latter status on the date of application would receive it as part of the grant of residence status. However, someone who had not reached that point would not. In the latter case, there is no right to permanent residence conferred by the grant of residence status.

[163]The defendant argues that the case for the claimant and the Commission on this issue involves the impermissible importation into the WA of the “declaratory” element of EU free movement rights, in circumstances where this is not specifically authorised by the WA. As I have sought to explain, the defendant emphasises the new legal order which exists in the United Kingdom, following this country’s departure from the EU. The effect of this new order is that recourse to such principles of EU law is allowed only if permitted by the WA. I agree with that submission: see also paragraphs 130-132 above.

[164]The defendant also relies upon the (English) wording of Article 16 of the WA. The defendant highlights the words “shall have the right to acquire the right to reside permanently”. In the case of a State, such as the United Kingdom, which has chosen to exercise the power in Article 18 and establish a constitutive residence scheme, as opposed to a declaratory system, the defendant says that the acquisition must be by way of application and grant. Mr Blundell also draws attention to the closing words of the first sentence of Article 16, whereby the right to acquire the right to reside permanently arises “once they have completed the necessary periods of residence”. Mr Blundell points out that this eventuality may never arise. This underscores the contingent nature of the concept, which means the claimant is wrong to say that one of “the rights under this Title” is the right to acquire permanent residence in the automatic way for which the claimant contends.

[165]On the second day of the hearing, I asked the main parties and the Commission to provide a note (to be agreed if possible) on two matters:(i) a comparison across the different language versions of Article 16 of the phrase “right to acquire the right to reside permanently”; and

(ii) whether EU Member States which have, like the United Kingdom, opted for a constitutive scheme, require a second application to be made in order for a person to enjoy the right of permanent residence in Article 15.

[166]In the event, the parties were unable to agree a note. Instead, I received separate communications from the Commission and from the Government Legal Department on behalf of the defendant. Their respective responses on the two issues are set out in Annex 2 to this judgment.

[167]In its response, the Commission also drew my attention to the Commission Implementing Decision (EU) 2022/1945 of February 2020 “on documents to be issued pursuant to Article 18(1) and (4) and Article 26 of the [WA]”. The Implementing Decision is relevant both to those Member States that have decided to employ a constitutive scheme for giving effect to Title II of Part Two of the WA, and to those who have decided to use the declaratory scheme.

[168]Recital (9) to the Implementing Decision reads:

“(9) In order to ensure that the identity of the holder can be checked without doubts, the documents should have a minimum period of validity of five years and a maximum period of validity of 10 years so as to enable updating the picture of the holder.”

[169]Accordingly, Article 2 of the Implementing Decision provides that “The validity of the document shall be a minimum of five and a maximum of 10 years”.

[170]The Commission submits that it is evident from recital (9) that the purpose of having a time limit on the validity of documents under Article 18 of the WA (and, in the case of frontier workers, Article 24) is to “enable updating of the picture of the holder”. Thus, “the expiry of the documents provided for in the [Implementing Decision] does not in any way imply the expiry of the underlying rights of residence”. These features are said by the Commission to confirm that, within the legal framework which applies to all Member States, there is no expiry of either non-permanent residence rights or residence status under the WA after five years.

[171]I accept that the Implementing Decision is indicative of such a legal framework; and that the Commission’s action in producing the Decision is compatible with its stance on what I have described as the first issue, on which I have found in favour of the claimant. The principle that documents evidencing free movement rights in the declaratory context can be of limited duration is already established in the Directive: see Articles 11 and 19.

[172]The position on the second issue is, however, far less clear from the post-hearing responses. As can be seen from the tables in Annex 2, there is a degree of difference in the question being answered, with the Commission’s question being somewhat broader than that of the defendant. Be that as it may, the GLD’s letter of 17 November 2022, attaching its material, states that the defendant’s information, received from United Kingdom posts, is that, save in respect of Hungary and Malta (the defendant being unable to obtain information regarding Luxembourg), notwithstanding the asterisked provision on page 2 of the Commission’s table in Annex 2, in 10 Member States “in practice a second application or administrative formality is required there for a person issued a non-permanent residence document (Article 13) to enjoy the rights associated with permanent residence (Article 15).” The asterisked provision in the Commission’s material states that, in States which, in its table, do require “a second successful application”, the “Failure to comply with such an administrative obligation does not have any impact on the continued existence of WA beneficiary status and the enjoyment of the connected rights.” The position, therefore, is that, except for Slovenia (where, according to both the defendant and the Commission, the government of that country appears to be of the same view as the defendant on this issue), there is a factual dispute as to whether, in other States operating a constitutive scheme, issuing the permanent residence document is regarded by those States as actually conferring the right of permanent residence.

[173]There is, by contrast, much greater consensus on the language versions of Article 16. The great majority of the official languages in which the WA is written employ the formulation “right to acquire the right to reside permanently” found in the English language version of Article 16, or something very close to it.

[174]At first sight, there does appear to be force in the defendant’s reliance upon this formulation and its use of the verb “to acquire”. The right to acquire another right means there are two rights in play. In a declaratory scheme, the acquisition of the second right is triggered merely by reaching the five year point. In a constitutive scheme, however, where rights have to be conferred, the defendant’s case is that the acquisition of the second right has to be by application and grant. If this were not so, the constitutive scheme becomes a form of hybrid, with elements of the declaratory scheme diluting the purpose and efficacy of the constitutive scheme, by introducing the very kind of uncertainty which the constitutive scheme is designed to avoid.

[175]There is, however, a question left begging in this argument: what exactly is the nature of the constitutive residence scheme for which provision is made in the WA? If the drafters of the WA have, in fact, created a constitutive scheme that is, at this point, hybrid in nature, then that is the scheme which the United Kingdom and the Member States must operate, even though some of them might have preferred something else.

[176]Attention must therefore focus on Article 18 of the WA. In Article 18(1), Mr Palmer is right to point to the facts that the new residence status is a single entity, and that it comprises “the rights under this Title”. This, on its face, includes the rights in Articles 15 and 16.

[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).

[180]The defendant argues that, if the claimant is correct, it is notable that the WA does not contain an equivalent of Article 25 of the Directive. This provides that possession of residence documentation cannot be the precondition for the exercise of a residence right; and that lawful residence can be established “by any other means of proof”. The WA thus leaves the cohort of persons who, following the grant of pre-settled status “automatically” acquire a right of permanent residence, without any right to insist on a document confirming their permanent residence status. The defendant says this would be a highly significant omission, given that the right of permanent residence confers a number of important benefits, such as unqualified access to state financial assistance. This omission is said to be all the more striking because Article 18(4) of the WA does include special provision akin to Article 25 for States which do not establish a constitutive residence scheme.

[181]I am not persuaded that this submission avails the defendant. The failure of the WA to say anything about how the pre-settled cohort are to have the right of permanent residence conferred is, I consider, a far greater problem. In any event, the difficulties described by the defendant are more apparent than real. A person with pre-settled status who subsequently obtains the right of permanent residence will be able to rely for most purposes upon the document originally issued under Article 18, evidencing what was then the qualified right of residence. Insofar as the individual concerned may wish to rely upon the right of permanent residence as such (for example, because they are no longer a worker), they may apply to the defendant for indefinite leave to remain. Indeed, I can see no reason why the defendant should not continue to encourage those who have been granted pre-settled status to apply for indefinite leave to remain.

[182]At this point, it is necessary to return to the question of whether a finding on this issue in favour of the claimant means that the time and effort respectively spent by the defendant and applicants in devising the EUSS and making applications under it were pointless. The answer is most precisely articulated in the revised written submissions of the3million Ltd. The application process contained in Article 18 was meaningful. Its purpose was to ensure that individuals were significantly incentivised to apply under the EUSS. The constitutive scheme created a “bright line” between those who obtained status under the WA and those who did not. Unless and until individuals obtained such status, rights under the WA were not conferred. This allowed the government to put in place a deadline, in order to generate public “buy-in” via a major communications campaign. It ensured that all who responded would then be registered and documented.

[183]The3milllion Ltd also point out that, since eligibility under the EUSS is not considered by the defendant to be entirely the same as eligibility under the WA, those who acquire pre-settled or settled status under the EUSS do not necessarily know whether they are considered by the defendant to have rights under the WA, without subsequent examination by an official. Eligibility for universal credit and other benefits depends on an individual being able to demonstrate a “right to reside”; but this specifically does not include having pre-settled status under the EUSS: regulation 9 of the Universal Credit Regulations 2013. Instead, the individual must demonstrate a right to reside by reference to archived implementing provisions of EU free movement law, under the Immigration (European Economic Area) Regulations 2016 (now repealed). In other words, there is a requirement on the United Kingdom government to continue to examine the circumstances of someone with pre-settled status for the purposes of ascertaining eligibility to welfare benefits: Fratila v Secretary of State for Work and Pensions.

[184]I therefore conclude that the defendant’s submissions on the alleged pointlessness of the Article 18 scheme, if the claimant is right, do not support her interpretation of the WA.

[185]The defendant submits that support for her interpretation is contained in Article 18(1)(n). This provides that, except in certain situations, the host State shall not require applicants to present supporting documents that go beyond what is strictly necessary and proportionate to provide evidence that the conditions relating to the right of residence under Title II have been fulfilled. The defendant says that if the purpose of the application procedure was simply to determine whether a person fell within scope of the WA, then Article 18(1)(n) would require an applicant simply to provide evidence that the requirements of Title II were satisfied. This, the defendant says, shows that the fundamental purpose of the new status is to confer actual residence rights, not merely to confirm that a person is in scope of such rights. Article 18(1)(n) is also said to encompass rights of permanent residence, which is directly contrary to the claimant’s submission that such rights are acquired automatically.

[186]I agree with the claimant that the defendant’s reliance on Article 18(1)(n) does not take her the requisite distance. I do not understand the claimant to be arguing that it is sufficient for an individual merely to satisfy the “scope” conditions of Article 10 of the WA. But even if that is a proper reading of the claimant’s position, the issue is really about the nature of the rights in Title II of Part Two; in particular, those in Articles 13 to 16, in the context of the constitutive scheme established by Article 18. If one of those rights is the right to acquire the right of residence by reaching the five-year point, then that is one of the rights conferred. There is also nothing in sub-paragraph (n) to support the contention that – despite Article 18(1)(a) to (d) and (2) – more than one application under Article 18 may be required.

[187]I find there is little to be gained by the defendant’s attempt to categorise the nature of the right to acquire permanent residence as contingent. Both Mr Palmer and Mr Blundell described the right as contingent, whilst continuing to disagree on what this meant for their respective cases. In my view, the fact that the right to acquire permanent residence may, in the event, never lead to the right of permanent residence does not say anything meaningful about how the right of permanent residence is acquired. I do not consider that Article 17 has anything relevant to say on this aspect.

[188]I am acutely conscious of the fact that, as the post-hearing information makes plain, there is good reason to suppose that the defendant is not alone in her view that those who subsequently reach the five year residence mark need to apply for the grant of a permanent right of residence. This certainly appears to be the position with Slovenia, although there is factual uncertainty about the position in a number of other States. I am also aware of the extraneous materials on this issue. Unlike the first issue, concerning loss of rights, these materials do indeed demonstrate that, both before and after the conclusion of the WA, officials in the Commission understood, and apparently accepted, the United Kingdom’s intention to require a person with pre-settled status to apply for settled status if and when they acquired the necessary five years’ residence.

[189]As I have mentioned, Article 32 of the Vienna Convention permits recourse to supplementary means of interpretation, including the preparatory work on the treaty, and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31 or to determine the meaning, when the interpretation according to the principles in Article 31 leaves the meaning ambiguous or obscure or would lead to a result which is manifestly absurd or unreasonable.

[190]Mr Blundell does not seek to rely upon the extraneous materials in order to determine the meaning of the WA. Rather, he relies on them to confirm the meaning for which the defendant contends under Article 31.

[191]The materials are, as I have indicated, strongly at odds with the interpretation for which the claimant and the Commission contend on the second issue. The materials do not, however, compel the conclusion that, despite the wording of Article 18, an important element of “the new residence status which confers the rights under this Title” has been left out of account: namely, the right of permanent residence for those who subsequently satisfy the five years’ residence requirement. Embarrassing though they may be for the Commission, the materials do not show that the construction for which the claimant and the Commission contend is manifestly absurd or unreasonable.

[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. I do not do so by importing any free-standing principles of EU free movement law because, so far as this country is concerned, there are no such free-standing principles. I confirm that there is no need for a reference to the CJEU. The matter is acte clair.

GENERAL CONCLUSIONS AND NEXT STEPS

[193]Having found for the claimant on both issues, the claimant is entitled to a declaration that the defendant’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 accordingly unlawful insofar as it(a) purports (as described in the court’s findings on the first issue) to abrogate rights of residence arising under the Agreements in respect of those granted limited leave to remain; and

(b) purports to abrogate the right of permanent residence in the manner described in the court’s findings in respect of the second issue.

[194]I invite the parties to seek to agree an order which gives effect to this judgment and which deals with any consequential matters.

[195]Finally, I wish to thank counsel and those instructing them for the high quality of the oral and written submissions and for the general preparation and other work they have undertaken to assist the court.

Cited in 12 later judgments

and 3 more of the most senior