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

Article 13

The Appellant accepts that the Withdrawal Agreement does not confer a right to reside on every person who comes within Article 10, and that States are permitted to limit that right to those who meet the conditions of Article 13(1). The Appellant further accepts that she does not come within the terms of Article 13(1) on an ordinary reading. However, the Appellant relies on Article 13(4) to submit that the UK has conferred an unconditional right of residence on those who qualify under the EUSS, including those with PSS, without distinguishing between those who meet the conditions specified within Article 13(1) and those who do not. To recap, Article 13(4) states, with emphasis on the key words:

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.”

The Appellant, by Mr Cox, says that Article 13(4) gives the signatories to the Withdrawal Agreement a power to grant residence rights under the agreement. He argues that the language of this provision is open and unlimited. He relies on the earlier judgment of this Court in Secretary of State for Work and Pensions v AT [2023] EWCA Civ 1307, [2024] KB 633 where the asymmetrical effect of Article 13(4) was recognised. As a matter of context, he submits that the signatories to the Withdrawal Agreement intended to retain flexibility to provide more generously than the agreement itself provided for, and in particular to recognise within Article 13(1) all those EU citizens who were within Article 10 - which would include the Appellant. If Article 13 was intended to be limited only to those who met the conditions under the CRD, Article 13(1) could have said so; but the reference to the TFEU, alongside the Article 13(4) discretion, reveals an intention to permit a wider group to be included, which would extend to anyone falling within Article 10. Article 13(1) was thus the irreducible minimum protected by the Withdrawal Agreement but was subject to Article 13(4) which provided a discretion to extend rights of residence under the Withdrawal Agreement to people like the Appellant. CG was a case decided during the transition period, at which point the status of PSS existed in domestic law alone. Once the transition period ended, the Withdrawal Agreement promoted those domestic law rights to the plane of international law. That analysis was strongly supported by AT, a case which examined a person’s rights of residence after the end of the transition period, and where the Court recognised that a person with PSS who did not meet the conditions of the CRD nonetheless had rights under Article 13 of the Withdrawal Agreement. Further, as a matter of interpretation, Article 13 falls to be interpreted in the same way as Article 21 TFEU (of which Article 13 is the analogue). A signatory to the Withdrawal Agreement can grant a right of residence under the Withdrawal Agreement, regardless of whether the conditions in the CRD have been satisfied; an analogy in the context of the TFEU would be with the “Ibrahim and Texeira right of residence” which was fashioned by the CJEU out of Article 21 TFEU (see Cases C-310/08 London Borough of Harrow v Nimco Hassan Ibrahim and C-480/08 Maria Teixeira v London Borough of Lambeth [2010] ICR 1118) to enable the primary carer of a child of an EEA citizen former worker, which child remained in education, to remain with that child in a host EU Member State even though the carer did not meet the conditions under the CRD. By reference to broader considerations of purpose, for the Withdrawal Agreement to recognise the Appellant as having residence rights under Article 13 ensured continuity with the status quo ante and was consistent with its recitals; by contrast, the Secretary of State’s position represented a “radical break” with the EU law position which previously prevailed because there would no longer be a power to waive the requirements for a right of residence. Further, uncertainty flowed from the Secretary of State’s case because the grant of PSS was not, after all, determinative of a person’s rights, and employers and others would have to look behind that status. Yet further, he suggests that the Withdrawal Agreement contained a degree of flexibility to avoid the system becoming overly complex and bureaucratic, which flexibility should not be overridden by the Court.

I address first of all Mr Cox’s reliance on AT. I am not persuaded AT helps him. AT was a Romanian national living in the UK with PSS; she left her home taking her daughter with her to escape domestic abuse by AT’s partner; AT’s claim to Universal Credit was refused by the Secretary of State for Work and Pensions on grounds that, as a person with PSS, she was not entitled to social support. The Court of Appeal upheld AT’s successful appeal against that decision. Green LJ, with whom King and Dingemans LJJ agreed, held that Article 13 of the Withdrawal Agreement did not create a “standalone” right but rather one that incorporated Article 21 TFEU by reference (para 94); Article 21 was the “umbrella” or “anchoring” right (para 94) and it was also a continuing right which triggered the obligation on the State to ensure that Charter rights were protected (paras 94 and 97). It was on the basis that AT’s Charter rights were in jeopardy by the refusal of benefits that AT’s appeal was upheld, because those Charter rights were protected by the Withdrawal Agreement and remained continuous (paras 99 and 150).

The reasoning in AT is closely dependent on CG, a case I have already considered. CG is not helpful to the Appellant’s case because in CG the CJEU categorised PSS as a domestic law right and differentiated it from EU law rights of residence contained in the CRD. AT is further confirmation of that proposition. Further, AT is not concerned with rights of residence under the CRD at all, only with rights under the Charter, and this appeal is not concerned with Charter rights. For those reasons, AT does not assist the Appellant.

I turn to Mr Cox’s other arguments. On an ordinary reading, Article 13(1) sets out the rule that EU citizens retain the right to reside in the host State under the limitations and conditions set out in the TFEU (relevant parts) and CRD (relevant parts). There is no surprise in that general rule, which is consistent with established EU law on rights of residence (see paragraph 55 above) and with the recitals in the Withdrawal Agreement which suggest that continuity was intended. In short, the general rule reflects the status quo ante.

Although I follow the Appellant’s arguments on Article 13(4) as a matter of language – because Article 13(4) plainly does contain a discretion to disapply the limitations and conditions provided for elsewhere as long as that discretion is exercised in favour of the individual – I am not attracted by the Appellant’s arguments about the scope and exercise of that discretion. There are a number of reasons for that.

First, the Appellant’s construction leads to an outcome which is inconsistent with, even contradictory of, the general rule in Article 13(1). It is difficult to understand why the Withdrawal Agreement would lay down that general rule only to permit it to be subverted a few sentences later. The Appellant’s case involves a subversion of the general rule on a grand scale – not just permitting an administrative discretion at the margins in difficult cases, but widening Article 13(1) to include all EU citizens who come within Article 10, regardless of whether they meet the CRD conditions.

Secondly, there are no clear words to express such an outcome, which puts in doubt that such an outcome was ever the common intention of the parties to the Withdrawal Agreement.

Thirdly, and contrary to the Appellant’s arguments, that outcome plainly does disrupt the status quo ante in a significant and systematic way. A person in the Appellant’s position had no right to benefits before the end of the transition period; yet the Appellant’s case is that she does have such rights afterwards. I have not been shown any convincing evidence that this was the intended effect of the Withdrawal Agreement.

Fourth, and more fundamentally, the Appellant’s arguments fail to respect the distinction identified in CG and repeated in AT between EU law residence rights on the one hand (specified in the CRD) and domestic law rights on the other (of which PSS stands as an exemplar); rather, under the Appellant’s argument the two are conflated under the umbrella heading of “rights of residence for Article 13(1) purposes”.

Fifth, this outcome offends the principle that domestic law rights cannot be imported into the EU legal order by one State acting unilaterally (see CG) which itself is a reflection of the wider international law rule that one signatory cannot unilaterally vary the terms of a Treaty (see Anson). The effect of the Appellant’s argument is to elevate a domestic law right, PSS, into a right of residence protected under the Withdrawal Agreement. Even if that was what the UK had wanted to do (as to which, as I have said, there is no convincing evidence), the UK could not vary the terms of a multi-lateral international agreement in that way.

Sixth, in the context of an agreement intended to be of reciprocal effect, the Appellant’s construction would or might lead to the UK carrying a greater obligation to EU citizens than a comparable UK citizen (who had exercised their right of free movement) could claim from an EU host State; that is, unless that EU host State had used the discretion in Article 13(4) to expand the meaning of Article 13(1) to similar effect which seems unlikely (and is not established by available evidence about practice in other signatory States).

I find the Secretary of State’s submissions on Article 13(1) and (4), supported by the IMA, much more compelling, both as a matter of language, and by reference to the context and purpose of the Withdrawal Agreement. The Secretary of State argues that Article 13(1) sets the rule and the final words of Article 13(4) provide an administrative discretion to enable signatory States to deal with borderline cases. On that analysis, the general rule in Article 13(1) is not subverted. Rather, the signatory States retain an administrative discretion to avoid unnecessary complexity or unfairness in individual cases at the margins. As a matter of language, it means that the discretion – contained in just a few words tucked up at the end of Article 13(4) – is given a limited purpose, which better reflects its position and framing. It also explains the asymmetrical nature of the discretion, to be exercised in favour of the “person concerned”. That analysis is consistent with the stated objectives reflected in the recitals, because it preserves the status quo ante and achieves reciprocity.

That conclusion is, in one sense, sufficient to dispose of the appeal because Mr Cox’s case depends on extending Article 13(1) (by means of Article 13(4)) to encompass PSS holders like the Appellant. But it is preferable to consider all aspects of Mr Cox’s case on the interpretation of the Withdrawal Agreement before reaching a conclusion on Ground 1. I turn next to Article 18.