“2. The United Kingdom left the EU on31 January 2020 . During a transition period ending at 11 pm GMT on31 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...[TFEU] and the...[CRD]. 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, theImmigration 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 Section 7 was repealed with effect from31 December 2020 .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 set 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)).”
“STRESSING that the objective of this Agreement is to ensure an orderly withdrawal of the United Kingdom from the Union and Euratom. RECOGNISING that it is necessary to provide reciprocal protection for Union citizens and for United Kingdom nationals, 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 and based on the principle of non-discrimination; recognising also that rights deriving from periods of social security insurance should be protected.”
“1. The provisions of this Agreement 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. Accordingly, 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. 2. The United Kingdom shall ensure compliance with paragraph 1, including as regards the required powers of its judicial and administrative authorities to disapply inconsistent or incompatible domestic provisions, through domestic primary legislation. 3. 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. 4. The provisions of this Agreement referring to Union law or to concepts or provisions thereof shall in their implementation and application be interpreted in conformity with the relevant case law of the Court of Justice of the European Union handed down before the end of the transition period. 5. In the interpretation and application of this Agreement, the United Kingdom’s judicial and administrative authorities shall have due regard to relevant case law of the Court of Justice of the European Union handed down after the end of the transition period.”
“Article 4 contains special rules on interpretation and application. At the risk of over-simplification these are: (i) the principle of equal legal effect of the Agreement in the UK and EU in article 4(1); (ii) the principle of direct effect also in article 4(1); (iii) that the Withdrawal Agreement takes precedence over inconsistent UK law in article 4(2); (iv) the application of the methods and general principles of Union law to ‘Union law or to concepts or provisions thereof’ in article 4(3); and (v) the applicability of the jurisprudence of the CJEU (prior to the expiry of the transition period) to the implementation and application of the Agreement, in article 4(4).”
“(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”; and “(e) family members of the person referred to in in points (a) to (d) provided they fulfil one of the following conditions”
“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. 2. Family members who are either Union citizens or United Kingdom nationals shall have the right to reside in the host state as set out in Article 21 TFEU and in Article 6(1), point (d) of Article 7(1), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions. 3. ... 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.”
“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 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.”
“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.”
“Union citizens who are subject to the legislation of the United Kingdom at the end of the transition period as well as their family members and survivors”
“...granted, without any individual and discretionary assessment of personal needs to recipients on the basis of a legally defined position and provided that it relates to one of the risks expressly listed in Article 3(1) of Regulation No 883/2004.”
“Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member States as the nationals thereof.”
“64....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. ...... 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... ..... 68. Relying upon Anthony Aust, Modern Treaty Lawand Practice, 3rd ed (2013) ch 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 Comrs v Anson[2015] 4 All ER 288 , Lord Reed JSC had this to say about articles 31and 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.’” ‘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.’”
“132....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...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.”
“80....No easy assumptions can be made as to what each party was negotiating for or as to which negotiating positions were compromised by either the UK or the EU in order to seal a final deal. The task of the court is narrow and technical...When article 31 of the Vienna Convention attaches weight to the ‘object and purpose’ of the instrument this is not an invitation to delve into the minefield of negotiating objectives as a substitute for focusing upon the ‘text as a source for determining the parties’ intentions’: see Al-Malki v Reyes[2019] AC 735 , para 11. The duty of this court is not therefore to work out whether, in the hurly burly of negotiations, the UK or the EU got a better or worse deal in any particular respect and then to adjust the interpretation of the Agreement accordingly. Insofar as the lodestars to construction urged upon the court...are found in the text of the Agreement itself, in inferences properly to be drawn from the language used, or in admissible external sources, then of course they are relevant, but not otherwise. ”
“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.”
“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.”
“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.”
“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.”
“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.”
“(i) An EU citizen can claim equal treatment in respect of social assistance only if his or her residence in the host Member State complies with the terms of the CRD; the principle of non-discrimination in the TFEU is given more specific expression in Article 24 of the CRD (Dano, CG). (ii) A distinction is to be drawn between national rules and EU law rules of residence (Ziolkowski, CG). (iii) National rules can be more generous than the EU law system, but if a Member State introduces a national rule that is more generous, that rule remains a rule of domestic law and is not imported into EU law (Ziolkowski, CG). (iv) PSS is a more generous rule than the CRD requires, because the grant of PSS is not dependent on the applicant having sufficient resources to support themselves; PSS is a domestic law rules: the grant of PSS is not ‘on the basis of’ the CRD (CG). (v) Member States are entitled to refuse social benefits to economically inactive EU citizens who have exercised their right of free movement to live in that Member State, but who do not have a right of residence under Article 7 of the CRD because they are not complying with its conditions (Dano, CG). (vi) Such a refusal is not prohibited in EU law, even though the treatment is not equal as between EU citizens and nationals of the Member State in a similar situation (Dano, Alimanovic, CG). (vii) Where a Member State has implemented a more generous rule, it is obliged to respect the Charter, ensuring that the fundamental rights of those who benefit from the more generous rule are not violated by the refusal of social benefits (CG).”
“103. I see the Appellant's arguments based on the language of Article 18(1), but here too I think the Appellant faces a number of hurdles. First, the title of Article 18 indicates that the provision is about the issuance of documents – which suggests that it is an administrative or operational provision rather than a provision concerned with the grant of rights. Its placement in Title II is not at odds with that characterisation, because the documents in question, and the new residence status they evidence, are indeed connected with a person's rights which are the subject of Title II. 104. Secondly, the content of Article 18 supports the conclusion that it is an administrative or operational provision. It contains a number of administrative processes for recognising rights. Article 18(1) permits a host State to require EU citizens or UK nationals to apply for the new residence status; the various conditions then listed within Article 18(1) are centred on the process of applying and the evidence required to support such an application, rather than the content of the rights conferred. The implementation of this new residence status is not compulsory, so the UK could have done nothing at all, in which case it would only be obliged to provide a residence document on request to those who are "eligible for residence rights under this Title" (see Article 18(4)). Article 18 therefore permits two options and they must be of parallel effect; the second option, under Article 18(4), quite clearly only avails those who are eligible for residence rights under Title II, which would exclude the Appellant. It is reasonable to infer that the Article 18(1) process is not intended to be of wider effect. 105. Thirdly, Article 18(4) refers to the new residence status (in Article 18(1)) as a "condition for legal residence" in the host State, which supports the proposition that the new residence status is the pre-cursor to legal residence rather than itself constituting that right of residence. 106. Fourth, the references to rights in Article 18 are invariably described as "rights under this Title". That must, on any sensible linguistic or purposive analysis, require regard to be had to the other provisions of this title, namely Title II of Part Two, to establish what rights are in issue. Title II includes Article 13(1), which refers to the "limitations and conditions" attaching to the rights under the TFEU or the CRD there listed; it also includes Article 15, the right of permanent residence, which is subject to the condition of continuous residence for 5 years. It is common ground that the Appellant does not have any rights of residence under the TFEU or the CRD, to which Article 13(1) refers (absent, of course, a read-in by means of Article 13(4) – addressed above), nor does she have a right of permanent residence under the conditions listed in Article 15. Yet those are the obvious places to look for the "rights under this Title". Title II does not include Article 10, which contains a reference to "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 thereafter" – a description which the Appellant does meet. 107. Fifth, Article 18 could have referred to Article 10 in terms if it was intended that Article 18 should encompass all those within Article 10. The absence of such cross-referencing (to Article 10) or some other language to denote the wider scope for which the Appellant argues is significant. These are all points made by the Secretary of State and the IMA and I agree with them.”
“113. In my judgment, in agreement with the Secretary of State (supported by the IMA), the new residence status in Article 18 is merely a gateway to other rights. It was described as a "laissez-passer" by the judge below. In argument in this Court, Ms Smyth described it as a "badge of entitlement". These sorts of descriptions are helpful without being definitive. They show that the new residence status in Article 18 is a means by which a person can access rights which they already hold or might come to hold under the Withdrawal Agreement and preserved from EU law; it does not itself confer those rights. 114. I reject the Appellant's argument that domestic law rights under PSS were automatically elevated by operation of Article 18 into rights under the Withdrawal Agreement on1 January 2021 . The function of Article 18 is much more limited. It brings into existence the new residence status as a gateway to other rights under the Withdrawal Agreement. That new residence status was embodied in the EUSS and was a means of ensuring that EU citizens resident in the UK would ‘stand up and be counted’. 115. It follows, as a matter of logic, that some individuals with PSS on1 January 2021 would have come into possession of a right of residence, previously held as a matter of EU law and now preserved by the Withdrawal Agreement. Such rights would correctly be categorised as held ‘on the basis of the Withdrawal Agreement’ for Article 23 purposes...However, there was another group, into which the Appellant moved from February 2021 onwards, which comprised members with no EU right of residence and in consequence no right to reside on the basis of the Withdrawal Agreement; members of the latter group only have a domestic law right to remain in the UK. Thus it can be said that PSS is a single immigration status, conferring limited leave to remain in the UK, but that those with PSS will have differing rights of residence, depending on personal circumstances, and their entitlements and protections under the Withdrawal Agreement differ accordingly. 116. I conclude that the ‘new residence status which confers the rights under this Title’ in Article 18(1) means only that it is a status (or badge) which confers (in the sense of giving access to or providing a gateway to) such rights as may have accrued, or yet accrue, under Title II of Part Two. At the time of the decision under appeal, the Appellant had no rights of residence under Title II of Part Two...” (Emphasis in the original.)
“70. At the first stage of the analysis, it is important to bear in mind at all material times the conceptual distinction between the ‘in accordance with conditions set out in this Title’ (stage 1) and the ‘new residence status which confers the rights under this Title’ (stage 2). The former are about the preconditions for the acquisition of the new status; the latter are about the nature and content of the rights which flow, or may flow, from the grant of that status. There must be no attempt at elision between the two, contrary to the appellant’s approach. ..... 72. At stage 2 the examination must be of the nature and content of the rights conferred by or under the ‘new residence status’. In my judgment Lane J was correct to hold that these rights are in the nature of being conditional and not absolute (putting the matter in my language and not his) that the grant of the status is no more than the gateway or passport to the potential acquisition of a particular right at the relevant time...The ‘rights conferred under Title II’ depend on what a person’s circumstances might happen to be at the relevant point in time. 73. I accept that there is a degree of tension inherent in article 18(1) which causes a modicum of head scratching. On the one hand, putting to one side what the UK has done in practice, the ‘new residence status’ is a one-off grant which depends on the fulfilment of certain conditions at the time of grant. However, there is nothing to suggest that the status itself could or should be lost if the preconditions for acquisition are no longer met... 74. In my judgment, the framers of article 18(1) have created an entity whose fundamental characteristics, like the quantum particle, does not allow itself easily to be pinned down. Even so, the stumbling block for the appellant’s argument is that the ‘new residence status’ is not a ‘once-and-for-all’ or blanket conferment of rights, both current and future. It is and can be no more than the laissez-passer to the claiming or invoking of rights at some future date (which date may never in fact materialise); and in that particular sense alone confers these rights.” (Emphasis in the original.)
“Human dignity is inviolable. It must be respected and protected”
“The dignity of the human person is not only a fundamental right in itself but constitutes the real basis of fundamental rights...It results that none of the rights laid down in this Charter may be used to harm the dignity of another person, and that the dignity of the human person is part of the substance of the rights laid down in this Charter. It must therefore be respected, even where a right is restricted.”
“Everyone has the right to respect for his or her private and family life, home and communications”
“In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration”
“55. In my view it is of significance to note the important distinction between the case of a person attempting to make an application for the new residence status under article 18 of the Withdrawal Agreement after the deadline for applications has expired and the appellants in CG and AT. As noted above the deadline under article 18(1)(b) is no less than six months from the end of the transition date (unless extended by a year under the provisions of article 18(1)(c)). During that period, within which an application for the new residence status should be made, article 18(2) makes clear that “all rights provided for in this Part shall be deemed to apply to EU Citizens or UK 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”
“The overarching aim...is to improve identification and recovery from overseas visitors and migrants and to ensure that the NHS in England receives fair contribution for the cost of healthcare it provides to visitors who require treatment by the NHS.”
“(1) No charge may be made or recovered in respect of relevant services provided to an overseas visitor to whom paragraph (2) or (3) applies during the period which begins with the date on which the application mentioned in paragraph (2)(b) or (3)(b), as the case may be, is made and which ends with the date on which that application is finally determined under Appendix EU to the immigration rules. (2) This paragraph applies to a person who is an overseas visitor by virtue of section 39 of the 2014 Act who – (a) is eligible to apply for leave to enter or remain in the United Kingdom under Appendix EU to the immigration rules, and (b) makes a valid application for leave to enter or remain in the United Kingdom under that Appendix to those rules after the application deadline. (3) this paragraph applies to a person who is an overseas visitor by virtue of section 39 of the 2014 Act who – (a) was granted limited leave to enter or remain in the United Kingdom under Appendix EU to the immigration rules, and (b) after the expiry of that limited leave to enter or remain, makes a valid application for indefinite leave to enter or remain in the United Kingdom under Appendix EU to the immigration rules. ..... (5) Where a person has made an application mentioned in paragraph (2)(b) or (3)(b) and has received relevant services during the period specified in paragraph (1), if the relevant body- (a) has made charges for relevant services received during that period, but has not yet recovered them, it must not recover those charges; (b) has made and recovered charges for relevant services during that period, it must repay any sum paid in respect of those charges.” (a) is eligible to apply for leave to enter or remain in the United Kingdom under Appendix EU to the immigration rules, and (b) makes a valid application for leave to enter or remain in the United Kingdom under that Appendix to those rules after the application deadline. (3) this paragraph applies to a person who is an overseas visitor by virtue of section 39 of the 2014 Act who – (a) was granted limited leave to enter or remain in the United Kingdom under Appendix EU to the immigration rules, and (b) after the expiry of that limited leave to enter or remain, makes a valid application for indefinite leave to enter or remain in the United Kingdom under Appendix EU to the immigration rules. ..... (a) has made charges for relevant services received during that period, but has not yet recovered them, it must not recover those charges; (b) has made and recovered charges for relevant services during that period, it must repay any sum paid in respect of those charges.”
“The IMA considers it is compatible with the Agreements to seek to recover charges for NHS treatment during the period between the expiry of the application deadline and the acceptance of a valid application to the EUSS. This means that following expiry of the deadline, a child or joining family member is only able to access their rights under the Agreements where they have made a valid application to the EUSS. This includes being able to use all of the NHS for free.”
“80....it is clear from the court’s case law that the need to protect the finances of the host member state justifies in principle the possibility of checking whether residence is lawful when a social benefit is granted in particular to persons from other member states who are not economically active, as such grant could have consequences for the overall level of assistance which may be accorded by that state...”
“47...it cannot be excluded that the possible risk of seriously undermining the financial balance of a social security system may constitute a legitimate objective capable of justifying a difference in treatment based on religion.”
“49....in a situation where benefits in kind provided in the Member State of stay give rise to higher costs than those relating to benefits which would have been provided in the insured person’s Member State of residence, the obligation to refund in full may give rise to additional costs for the Member State of residence. 50. As the referring court rightly acknowledged, such additional costs would be difficult to foresee if, in order to avoid a difference in treatment based on religion, the competent institution were obliged to take account of the insured person’s religious beliefs when implementing art. 20 of Regulation 883/2004... 51. Furthermore, as the Italian Government stated in its written observations, it is possible that national health systems may face a large number of requests for authorisation to receive cross-border healthcare which are based on religious grounds rather than on the insured person’s medical situation. 52. If the competent institution were obliged to take account of the insured person’s religious beliefs, such additional costs could, given their unpredictability and potential scale, be capable of entailing a risk in relation to the need to protect the financial stability of the health insurance system, which is a legitimate objective recognised by EU law. Accordingly, a prior authorisation system which does not take account of the insured person’s religious beliefs but which is based exclusively on medical criteria may reduce such a risk and therefore appears to be appropriate for that purpose of achieving the objective.”
“54.It must, therefore, be held that the Member State of affiliation would, in the absence of a prior authorisation system based exclusively on medical criteria, face an additional financial burden which would be difficult to foresee and likely to entail a risk to the financial stability of its health insurance system. 55.In those circumstances, not to take into account the insured person’s religious beliefs, in examining a request for prior authorisation...appears to be a justified measure in light of the objective mentioned at [52] above, which does not exceed what is objectively necessary for that purpose and satisfies the requirement of proportionality...”
“There is no indication in the Withdrawal Agreement that the rights of such Withdrawal Agreement beneficiaries should differ from those who applied in time, even though there is no explicit rule in the Withdrawal Agreement that would govern the legal nature of residence of a late applicant between the end of the application deadline and the decision on whether there were reasonable grounds for applying out of time. In other words, where the national authorities accept that there were indeed reasonable grounds for not applying in time, Article 18(3) of the Withdrawal Agreement applies to such Withdrawal Agreement beneficiaries in the same way as to in-time applicants. The objective of temporary protection is to ensure that there is no ‘gap’ during which an applicant’s residence would be considered unlawful. For successful late applicants, this objective is met only if the concept that considers residence as lawful is extended to the period preceding the submission of the late application... Given the overall unique context of departure from the declaratory nature of EU law on free movement of EU citizens in constitutive schemes in which Article 18(1)(d) of the Withdrawal Agreement finds itself, the entire period of residence of late applicants should retroactively (ex tunc) be considered lawful if they are successful in being granted Withdrawal Agreement beneficiary status based on a late application.”
“I reject the Appellant's argument that domestic law rights under PSS were automatically elevated by operation of Article 18 into rights under the Withdrawal Agreement on1 January 2021 . The function of Article 18 is much more limited. It brings into existence the new residence status as a gateway to other rights under the Withdrawal Agreement.”
“At the first stage of the analysis, it is important to bear in mind at all material times the conceptual distinction between the ‘in accordance with conditions set out in this Title’ (stage 1) and the ‘new residence status which confers the rights under this Title’ (stage 2). The former are about the preconditions for the acquisition of the new status; the latter are about the nature and content of the rights which flow, or may flow, from the grant of that status. There must be no attempt at elision between the two...”