The King on the application of the Independent Monitoring Authority for the Citizens' Rights Agreements v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3274 (Admin) |
| Docket Number | Case No: CO/4193/2021 |
| Court | King's Bench Division (Administrative Court) |
and
[2022] EWHC 3274 (Admin)
Mr Justice Lane
Case No: CO/4193/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robert Palmer KC, Ms Clíodhna Kelleher (instructed by the IMA Legal Directorate) for the Claimant
Mr David Blundell KC, Ms Julia Smyth (instructed by Government Legal Department) for the Defendant
Mr Nicholas Khan KC, (Legal Service, European Commission) for the First Intervener
Written Submissions by Ms Galina Ward KC, Mr Bijan Hoshi and Mr Charles Bishop (instructed by Public Law Project) on behalf of the Second Intervener
Hearing dates: 1 and 2 November 2022
Further materials and submissions filed on 17 November 2022
A. INTRODUCTION
In the light of the result of the referendum held in 2016 on whether the United Kingdom should leave the European Union, the government concluded with the EU on 17 October 2019 an “Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community”. The agreement is commonly referred to as the Withdrawal Agreement (“WA”).
The United Kingdom left the EU on 31 January 2020. During a transition period, ending at 11pm GMT on 31 December 2020, EU law continued to apply in the United Kingdom. This included the law of free movement under Articles 21, 45 and 49 of the Treaty on the Functioning of the European Union (“TFEU”) and Directive 2004/38/EC (“the Directive”).
The nature and scope of EU free movement rights were incompatible with the general system of immigration control in the United Kingdom, contained in the Immigration Acts; in particular, the Immigration Act 1971 (“the 1971 Act”). Section 1 of the 1971 Act provides that those without the right of abode in the United Kingdom are subject to a system of control, as to which section 3 provides for the grant of leave to enter or remain for either a limited or for an indefinite period.
Section 7 of the Immigration Act 1988 accordingly provided that a person who was entitled to enter or remain in the United Kingdom by reason of EU law was not subject to the requirements of the 1971 Act concerning leave to enter or remain.
Section 7 was repealed with effect from 31 December 2020. After that date, EU citizens cannot rely on a right of free movement to enter or remain in the United Kingdom. They are therefore subject to the 1971 Act, in the same way as anyone else who lacks the right of abode.
Importantly, however, Part Two of the WA makes provision for residence rights in respect of “Union citizens who exercise their right to reside in the United Kingdom in accordance with Union law before the end of the transition period and continue to reside there thereafter” (Article 10(1)(a)). The nature of these residence rights is set out in Articles 13 to 17 of the WA, whilst provision for the issuance of residence documents is made by Article 18. This Article confers a power on the host State (for our purposes, the United Kingdom) to require EU citizens, their respective family members and other persons, who reside in its territory in accordance with the conditions sets out in Title II of Part Two, to apply for a new residence status which confers the rights under that Title and a document evidencing such status, which may be in digital form (Article 18(1)).
B. THE CASE IN OUTLINE
The defendant considers that she has exercised the power in Article 18(1) by making immigration rules under the 1971 Act, to be found in Appendix EU. The claimant contends that the defendant is, in effect, in breach of her obligations under the WA because those rules produce effects that are at variance with the WA.
The claimant was established pursuant to Article 159(1) of the WA. Article 159(1) provides for the implementation and application of Part Two of the WA to be monitored in the United Kingdom by the claimant, “which shall have powers equivalent to those of the European Commission acting under the Treaties to conduct inquiries on its own initiative concerning alleged breaches of Part Two by the administrative authorities of the United Kingdom … [and] to bring a legal action before a competent court or tribunal in the United Kingdom in an appropriate judicial procedure with a view to seeking an adequate remedy”.
In broad terms, the defendant's relevant immigration rules (“EUSS”) operate so as to grant limited leave to remain (five years) under the 1971 Act to those who applied pursuant to Article 18 of the WA for a new residence status, in circumstances where, at the relevant time, the applicant had residence rights under Part Two which did not at that point entitle the applicant to a right of permanent residence, as described in Article 15. The consequence of having time-limited leave to remain is that, following the expiry of that leave, the person concerned will have no lawful status in the United Kingdom, unless that limited leave is extended by operation of law or they are given further leave to remain by the defendant.
An applicant who, at the relevant time, had resided legally in the United Kingdom for a continuous period of five years under the conditions mentioned in Article 15 of the WA was granted indefinite leave to remain under the EUSS.
The claimant is concerned about the position of those who have been granted limited leave to remain under the EUSS pursuant to Article 18 of the WA, as described in paragraph 9 above. In essence, the claimant submits that a person whose limited leave to remain comes to an end, without further leave being granted, faces serious problems; not least, the consequence which follows under the 1971 Act of being in the United Kingdom unlawfully. The claimant says such an outcome is not permitted by the WA.
The claimant is also concerned on behalf of certain citizens of Iceland, Liechtenstein and Norway. On 20 December 2018, the United Kingdom concluded an agreement with those countries: the EEA EFTA Separation Agreement (“SA”). Article 64(1) of the SA conferred upon the claimant the function of monitoring the implementation and application in the United Kingdom of Part Two of the SA. That Part is effectively in the same terms as Part Two of the WA.
Swiss citizens are protected under a separate Swiss Citizens Rights Agreement (“SCRA”). The claimant does not have a role in relation to the SCRA, which makes no provision for a monitoring authority. The claimant suggests, however, that there is no reason why the substantive rights of Swiss citizens in the United Kingdom are any different for present purposes than those of EU citizens and EEA EFTA nationals. The defendant does not demur.
I should mention at this point that the defendant has been more generous in the EUSS than the WA, in that she has given limited or indefinite leave to EU citizens, on the basis of residence simpliciter in the United Kingdom, rather than on the basis of residence in accordance with the conditions applying to the right of free movement. Whilst the claimant acknowledges the defendant's policy in this regard, this does not, in the claimant's view, affect its concerns over the position of the cohort given limited leave.
So far, I have referred to the position of EU citizens under the WA and the EUSS. It is the case, however, that Part Two of the WA also confers residence rights on family members, who may or may not be EU citizens: Article 13(2) and (3).
Although, for the most part, the written and oral submissions of the parties made specific reference to EU citizens, it is common ground that those submissions should generally be taken as extending to citizens of the other countries I have mentioned; and also to their relevant family members. I have sought to adopt the same approach in this judgment.
The European Commission (“the Commission”) intervened in this case. Article 162 of the WA provides that:-
“Where the consistent interpretation and application of this Agreement so requires, the European Commission may submit written observations to the courts and tribunals of the United Kingdom in pending cases where the interpretation of the Agreement is concerned. The European Commission may, with the permission of the court or tribunal in question, also make oral observations. The European Commission shall inform the United Kingdom of its intention to submit observations before formally making such submissions.”
Having considered the terms on which Saini J granted permission to the claimant to bring this judicial review, and in light of the Judge's observation that the claimant had raised “a real issue as to the potential application of EU law in the interpretation of the WA”, the Commission decided that it was appropriate to intervene in the present proceedings to the fullest extent described in Article 162. On behalf of the Commission, Mr Nicholas Khan KC filed written observations on 17 October 2022. At the hearing, I also received oral submissions from Mr Khan.
The second intervener is the3million Ltd. This is a not-for-profit organisation formed after the 2016 referendum in order to work on the specific issue of protecting the rights of EU etc citizens living in the United Kingdom, and their families. Despite the objection of the defendant, I permitted the3million Ltd to intervene. I concluded, however, that its intervention should be confined to written submissions, rather than extending to evidence. Written submissions were filed by Ms Galina Ward KC, Mr Bijan Hoshi and Mr Charles Bishop.
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