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

Article 18

Mr Cox began his submissions by taking the Court to the letter sent to the Appellant on 18 November 2020 which granted her application under the EUSS and referring to the Appellant’s digital confirmation of PSS which stated that her leave had been issued “in accordance with … the Withdrawal Agreement”. I understand why he goes to these documents and I see the point he makes based on them, but the meaning of an international treaty cannot be determined by the language used in correspondence between the authorities of one signatory State and individuals living in their territory. In any event, the words are not, it seems to me, inconsistent with the Secretary of State’s case, which recognises that Article 18 is the origin of the new residence status of which PSS forms part. The dispute centres on the content and effect of that new residence status.

Mr Cox argues that the effect of Article 18 is to elevate PSS, which had previously operated on the plane of domestic law (see CG), into an international law right of residence protected by the Withdrawal Agreement. Article 19(2) states in terms that decisions under Article 18 shall have no effect until the end of the transition period, which supports the argument that the status of such decisions changed on 1 January 2021 (and explains their elevation to the international law plane on that date). He says that the UK made a deliberate choice to adopt a system whereby all those who applied successfully under the EUSS would be treated in the same way. Further, he argues that it is not possible, having made an unconditional grant under the EUSS, for the UK to narrow the rights which are conferred by the new residence status to include only existing rights under Article 13(1) (absent the Article 13(4) expansion which I have addressed above). As a matter of language and context, the new residence status applies to, and benefits, all those with PSS. He says that the Secretary of State is wrong to argue that Article 18 is merely a gateway to other rights because it confers rights – something to be drawn from its plain words. Article 18 forms part of Title II which is about rights and obligations; it contains multiple references to conferring or granting rights, describing those rights as rights of residence (see, as examples, the introductory words of Article 18(1), Article 18(1)(a) and (n), Article 18(3) and Article 18(4)). Article 18(1)(q) states in terms that the new residence document (to which a person is entitled) shall include a statement that it has been issued “in accordance with this Agreement” which confirms the Appellant’s interpretation.

By way of recap, Article 18 is headed “Issuance of Residence Documents” and Article 18(1) provides, with emphasis on the key words, as follows:

“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.”

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.

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.

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.

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.

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.

Quite apart from those points based on the language and purpose of Article 18, I agree with the Secretary of State that the Appellant’s case is not supported by previous case law, specifically the IMA case (R (Independent Monitoring Authority) v Secretary of State for the Home Department [2022] EWHC 3274 (Admin), [2013] 1 WLR 817). In IMA, Lane J considered the content and meaning of Article 18 in the context of a judicial review brought by the IMA, which, supported by the EU Commission as intervener, succeeded in challenging the government’s position (as it then stood) that a person with PSS should be required to make a further application either to extend their leave period or to upgrade it to indefinite leave to remain, failing which that person’s underlying right of residence in the UK would be lost. The Court held that the UK’s approach involved an impermissible limitation on an EU citizen’s right to reside (citing the prohibition on any host State imposing new or different limitations or conditions on rights of residence contained in the first sentence of Article 13(4)) because as a matter of EU law the right of permanent residence was acquired automatically on satisfaction of the relevant conditions and could not be lost through inaction. The case is important in the context of this appeal for two main reasons. First, it contains a valuable explanation of the nature and purpose of the EUSS (paras 45-54). Lane J recognises that the EUSS was implemented by the UK pursuant to the permission at Article 18(1) of the Withdrawal Agreement. EUSS was a “constitutive scheme”, the first option permitted to signatory States under Article 18(1). By a constitutive scheme, rights were conferred by the grant of the new residence status, for which eligible persons had to apply. The second option is a “declaratory scheme”, permitted by Article 18(4), whereby rights arise automatically without any need for registration or conferred status, so that a person can demand recognition of those rights but does not need to stand up and be counted.

Secondly, it contains an analysis of what is meant by the “new residence status” referred to in Article 18. The Commission had advanced the following arguments, predicated on the status being that of “WA beneficiary”:

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 successful 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.

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.”

The Commission argued that where a Member State had implemented a constitutive scheme there was an obligation on an individual to “stand up and be counted”, but that was all they had to do and they could not be required to make a new application once that new residence status had been conferred (para 90). This was in opposition to the case advanced by the SSHD to the effect that “the constitutive scheme gives rise to rights under the WA, as opposed to those rights arising automatically on fulfilment of the relevant conditions” (para 98). Lane J held that the United Kingdom was in breach of the prohibition contained in the first sentence of Article 13(4) of the Withdrawal Agreement by requiring a person with PSS to make a fresh application at the point they wished to have settled status conferred on them (paras 138, 145). There was one, and only one, application required for the new residence status (paras 177 and 179). He held that the application process was still 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.”

Lane J accepted the arguments advanced by the IMA and the Commission (para 192). The case does not therefore support the Appellant’s arguments that Article 18 confers rights; it is strongly supportive of the Secretary of State’s opposing argument that Article 18 is an administrative measure only, providing an immigration status (or gateway) to which other rights are attached.

Ms Smyth KC, who represents the Secretary of State in this appeal, confirmed on instructions that the Government now considers IMA to have been correctly decided. Thus, the case represents the agreed position of the UK Government, the Commission and the IMA. To my mind the case carries considerable weight in this Court. It is, as Ms Smyth submitted, evidence of subsequent agreement by the parties to the Withdrawal Agreement as to its interpretation, which this Court can take into account applying Anson (see paras 82-83 above). Lane J’s analysis in IMA echoes the description of the EUSS contained in the materials referred to at paras 20-22 above, which materials can also be relied on as confirming the Secretary of State’s case on Article 18(1).

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.

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 on 1 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”.

It follows, as a matter of logic, that some individuals with PSS on 1 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. Typically, these would be EU citizens who had exercised their right to free movement to come to the UK and were either still within their first three months (Article 6 CRD) or remained economically active or retained sufficient resources to be self-sufficient (Article 7 CRD) (preserved by Article 13(1) of the Withdrawal Agreement). Indeed, if I have my dates right, the Appellant was within this group for a brief time because she arrived in the UK in November 2020. 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.

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. She did have rights under the Charter, but those are not in issue in this appeal.

This is to accept the submissions of the Secretary of State, supported by the IMA and the Respondent, on the scope and meaning of Article 18.