CA-2024-001773 - [2025] EWCA Civ 1057

Ancillary Points on Ground 1

The Respondent’s Notice

The Secretary of State challenges the judge’s reasoning on one point, relating to Article 13(4). At paragraphs 78 to 84 of his judgment, Jay J rejected the Secretary of State’s submissions (then put by Mr Cornwell) that the status of PSS was conferred solely by domestic law (permitted by Article 38 of the Withdrawal Agreement) concluding instead, as his preferred analysis, that PSS was the result of the United Kingdom disapplying the strict rule of Article 7 CRD, by means of Article 13(4), with the consequence that PSS was a right to residence under the Withdrawal Agreement. His alternative analysis (at para 89) was that PSS was a purely domestic law right, which was permitted by Article 38 of the Withdrawal Agreement.

I agree with the Secretary of State (and the IMA) that the judge’s alternative analysis is the right one. PSS is a domestic law rule which is not part of the EU legal order (or, I infer, the international law order established by the Withdrawal Agreement): see CG and the propositions of law drawn from it summarised at paragraph 55 above. The cohort of EU citizens entitled to PSS includes those with EU law residence rights (complying with the CRD) but it also includes others who have no such rights (not meeting the conditions of the CRD). PSS is more generous than the scheme of EU rights of residence; such generosity is permitted by Article 38 of the Withdrawal Agreement (Article 37 of the CRD during the transition period). It does not result in an expansion of Article 13(1) or any other provision of the Withdrawal Agreement. It follows that the UK was not relying on Article 13(4) in implementing the EUSS. The power to devise a scheme such as the EUSS comes from Article 18(1). To the extent that the scheme benefited individuals who did not have EU law rights of residence (which became rights protected under the Withdrawal Agreement after 1 January 2021), it was offering more generous terms as it was entitled to do under Article 37 of the CRD or Article 38 of the Withdrawal Agreement.

The outstanding issue between the Secretary of State and the IMA/Shelter

Shelter argues that a person with PSS has an EU right to residence under Article 21 of the TFEU, which right (they say) is within Article 13(1). This argument is not supported by the Appellant (who recognises that she has no right under Article 13(1) - absent the argument about exercise of discretion under Article 13(4) which I have already addressed).

The IMA argues in partial support of Shelter on this point, suggesting that there might, in another case, be a right of residence derived directly from Article 21 TFEU which is preserved by the Withdrawal Agreement (by analogy with the preservation of Charter rights as in CG and AT).

The argument is resisted by the Secretary of State who notes that the CRD is lex specialis. Ms Smyth submits that the Court should have regard only to the CRD in determining the Appellant’s residence rights in EU law as those rights have been preserved by the Withdrawal Agreement. She acknowledges that there are rights of residence which fall outside the CRD - the Ibrahim and Texeira right is an example - but there is no suggestion that there are any such rights in issue in this case and Article 21 of the TFEU does not provide the Appellant with any alternative basis for claiming a residence right in EU law.

In my judgment, Shelter is wrong to suggest (if I understand their submissions correctly) that this Appellant has a “free-standing” right of residence arising out of Article 21 TFEU; it is quite clear from the case law summarised at paragraph 55 above that the general rights in Article 21 give way to the specific implementation of those rights contained in the CRD. For reasons discussed above, this Appellant has no rights of residence under the CRD.

In answer to the IMA’s point, I would leave open for determination in another case where it might make a difference to outcome the possibility that there might be an EU law right of residence which falls or fell outside the CRD but is still preserved by the Withdrawal Agreement and as such benefits from equal treatment protection under Article 23. There is no argument for the existence of any such right in this case.