Thread by @CR_OBrien

Want to hear a twisty tale about a quiet and catastrophic argument that risks stripping 6 million+ EU nationals (& fam members) of Withdrawal Agreement (WA) protection? 🧵on UK authorities arguing that EUSS status is NOT WA status, and how @EURightsHub has helped counter this:

UK authorities have, in the course of various cases, been deploying some ingenious but incendiary arguments, that would mean almost none of the 6million + people registered with the EU Settlement Scheme can know whether they are covered by the Withdrawal Agreement.

This should come as a shock. The EUSS deadline was 3 yrs ago; ppl registered to show they are protected by the Withdrawal Agreement, right? In the face of warnings about a vulnerable minority who would be disentitled overnight, the govt stuck to the constitutive EUSS model...

And was asked why. Then Home Secretary (Sajid Javid - it was a few HSs ago) said: ‘In a word, Windrush’.

data.parliament.uk/writtenevidenc…

The whole aim of the EUSS, we were told, was to prevent a situation arising where people believed they had rights but could not prove it; to avoid Withdrawal Agreement status being undocumented. The UK reported the EUSS *as an implementation of the WA*.

But now, in order to avoid a few people having some short term benefit entitlement, the government is seeking to dissolve the intrinsic connection between the EUSS and the WA, arguing that EUSS does not create evidence of coverage by the WA.

Why? Well, the UK government was allowed, under the WA, to make temporary residence rights conditional upon exercising a ‘right to reside’ (typically, being in work), and to make permanent residence conditional upon continuous economic activity for 5 years.

Instead, facing a gargantuan administrative task, and having adopted the shortest possible deadline by choice, the government opted to make the EUSS scheme conditional only on residence. Resident for 5 years = settled status. Resident for less time = pre-settled status.

In cases where vulnerable EU nationals with pre-settled status have sought benefits, or housing assistance, the government has argued that they are not covered by the WA, unless they also meet the conditions *which the UK chose not to impose*.

Both the IMA and the EU Commission have also used the language of the ‘true’ cohort (got EUSS status and meet the WA optional conditions), and the ‘extra’ cohort (got EUSS, but no evidence of meeting the WA conditions).
commission.europa.eu/publications/j…

invalidates the assumed WA protection of everyone in the EUSS. If, as the UK govt argue, those with PSS only have it by virtue of domestic law, then those with EUSS settled status, or who later acquire EUSS settled status, also have it only by virtue of the EUSS, or domestic law.

What is more, by this logic, even those who could have met the WA conditions cannot rely on the EUSS as evidence of WA protection. At no point have applicants to the EUSS been routinely assessed to see whether they meet the (optional) WA conditions (which the UK did not impose).

So noone has been told whether they have WA rights. Only the few people with PSS who have attempted 2 claim benefits might have received a decision on WA scope. But even this is not definitive because (a) that decision may be wrong and under appeal; and

(b) that decision reflects the govt position at a single point in time. If someone was working but fell out of work, due to e.g. caring responsibilities they would be (secretly) deemed to fall out of WA scope. And once you are out of scope, *there is no way to get back in scope*.

But nobody will at any point have told EU nationals about this. People in casual, low paid or erratic work, might think they meet WA conditions, but later find the govt disagrees.

So the government has created a permanent, secret disjuncture, by arguing that only those who, at a particular point in the past, and continuously for five subsequent continuous years, met conditions it chose not to impose, can be covered by the WA, but without telling them.

If this position holds, people may not discover for years – for decades – that the government actually thinks they do not have WA rights. But why does it matter?
Two words: regulatory divergence.

As the UK immigration system drifts further away from free movement and the government imposes new, harsher terms on ‘new’ arrivals, demonstrating WA rights could become imperative, to show e.g. the rights of family members – or the right to non-discrimination.

Only recently, the government unveiled proposals to make non-nationals wait for 10 years before becoming eligible for social housing, with an exception for those with WA rights – note, NOT an exception for those with EUSS status. . gov.uk/government/con…

Imagine, decades down the line being asked to undertake a mad documentary archaeological scramble, to prove you were economically active or self sufficient, on 31 December 2020, and for five continuous years thereafter.

Those years might have involve huge amounts of upheaval, and broken work histories. And you were never told at the time you had to keep any of that documentation, because you were safe, because: EUSS.

It is damaging, dishonest and unworkable to claim that EUSS status does not confer WA status.

This is the argument we presented to @the3million and the @AIRECentre while they were preparing their cases: eurightshub.york.ac.uk/blog/problems-…

These arguments were adopted by counsel (see paras 23(c) and 28-31):
the3million.org.uk/publication/20…

And this seems to have had some considerable traction in the court:
4-5.co.uk/assets/judgmen…

Hopefully, we are changing the conversation, and avoiding the catastrophe that severing EUSS status from WA protection would involve.

The WA is a new species of law. We cannot take any aspect for granted. Experts, lawyers, advisers & 3rd sector orgs all need to work together.