Thread by @SimonFRCox

Everyone granted leave to remain under UK’s EU Settlement Scheme is told by the Home Office that the “leave is issued in accordance with … the Withdrawal Agreement”. So is Colin right here? 1/

https://twitter.com/colinyeo1/status/1405498508124340224

This is Home Office’s formal notification. 2/

The Govt says (correctly) that the WA didn’t compel the UK to grant leave to all the people who have it under EUSS.

But the WA gave Member States the power to waive the residency requirements of the WA. 3/

Still, UK Gov claims that when they issue a grant of “pre-settled status” leave - with a statement that it’s under WA - this doesn’t mean the person has leave under the WA! 4/

UK Gov claims a person with PSS is only covered by WA on any day when (bear with me) they would have an EU right to reside, if UK hadn’t left the EU. 5/

So, if the UK Gov is right, all the millions of letters they sent to people with Pre-Settled Status saying “this is under the Withdrawal Agreement” don’t mean anything. 6/

I draw a different conclusion: the UK Gov letters mean what they say. They are conclusive proof that the holder has been granted the special status under art 18 WA 7/

Yes, the UK Gov chose to be more generous than the WA required. But they’re stuck with that choice. They can’t issue a document under WA and then deny its legal effect. 8/

How did this happen? Home Office deliberately chose to use EUSS to “regularise” almost everyone with EU law rights to reside. They didn’t want thousands - millions? - of difficult cases. 9/

But (my theory): Home Office told DWP they could go on using pre-Brexit rules to limit benefits to people with EU rights to reside, but… 10/

… no-one thought it all the way through that their mechanism would comply with WA. HO didn’t care much (benefits aren’t their thing) DWP left the formal granting of leave to HO (who are hard to deal with at best of times) 11/

HO didn’t want to work out whose EUSS leave was being given under WA - and whose wasn’t. They wanted one kind of leave - under App EU. They were being generous - no-one would complain! 12/

And HO definitely didn’t want people having to switch between “WA leave” and “non-WA leave”. It didn’t matter to HO.

So HO chose one size fits all. 13/

But now it can matter. Definitely for benefits, where DWP say that the proof of leave under WA isn’t proof that the holder falls under WA. I guess it’s one more issue for courts to resolve 14//