THE INDEPENDENT MONITORING AUTHORITY FOR THE CITIZENS' RIGHTS AGREEMENTS v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Under the Withdrawal Agreement, a constitutive residence scheme must preserve the residence rights conferred on its beneficiaries. A person granted pre-settled status cannot lose a subsisting conditional right of residence merely because limited leave expires without a further application. That expiry and application requirement are prohibited limitations or conditions under Article 13(4).

Article 18 permits only one application for the new residence status. For a beneficiary who has not yet completed the qualifying residence period, that status includes the right to permanent residence once the conditions in Article 15 are met. A second constitutive application may not be made a condition of acquiring or retaining that right, although the person may apply for documentary recognition or indefinite leave.

The claimant, the statutory body responsible for monitoring citizens’ rights under the Withdrawal Agreement, sought judicial review of the EU Settlement Scheme. The European Commission and the3million Ltd intervened in support.

The scheme granted five years’ limited leave, known as pre-settled status, to eligible persons who had not completed the qualifying period for permanent residence. Unless they later obtained further limited or indefinite leave, they would become unlawfully present when that leave expired.

The court considered whether the Agreements permitted a beneficiary’s conditional residence rights to expire in that way and whether permanent residence arose upon completion of the qualifying period without a second constitutive application.

1. The claim succeeded on both issues. The Withdrawal Agreement had to be interpreted under Articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969. Its ordinary meaning, context, object and purpose governed. EU concepts could be used where the Agreement referred to them, but free-standing free movement principles could not otherwise be imported: paras [128]–[133].

2. Article 13(4) prohibited the host State from adding limitations or conditions for retaining residence rights beyond those contained in Title II. Expiry of limited leave exposed a beneficiary to unlawful residence, criminal liability, inability to work and restrictions on benefits. Those consequences were substantive. Limited leave and the requirement to seek further leave were respectively a limitation and a condition prohibited by Article 13(4): paras [137]–[148].

3. A constitutive scheme authorised by Article 18 had to deliver the rights guaranteed by Title II. A beneficiary who continued to satisfy the relevant conditions could lose an Article 13 residence right only as provided by that Title. This remained true even if permanent residence required a separate application. Entitlement to acquire permanent residence did not extinguish the existing conditional right: paras [149]–[158].

4. Article 18 contemplated one application for a single new residence status conferring the rights in Title II. Articles 18(1)(a)–(d) and 18(2) contained no mechanism for a second constitutive application. It was inconceivable that such an important process would have been left entirely to national law when the Agreement regulated the initial application in detail: paras [159]–[179].

5. The new status granted to a person who had not yet completed five years therefore included the right to reside permanently once the Article 15 conditions were fulfilled. An application for indefinite leave could still be encouraged as documentary recognition, but could not constitute the underlying right. Extraneous materials could not displace the meaning reached under Article 31. No reference to the CJEU was necessary because the matter was acte clair: paras [180]–[192].

6. The claimant was entitled to a declaration that the defendant’s interpretation was wrong in law and that the scheme was unlawful insofar as it purported to abrogate conditional or permanent residence rights under the relevant Agreements. The parties were invited to agree an order: paras [193]–[194].

This was a first-instance judicial review. Saini J had granted permission, observing that the claim raised a real issue concerning the potential application of EU law when interpreting the Withdrawal Agreement: para [18].