EU and International Law
To begin, my essay will focus solely on how the EU citizens residence rights, in the
UK, have altered since the UK-EU Withdrawal Agreement 1 was drafted and when the
EU Settlement Scheme2 was later implemented by the UK government before the
ending of the transitional term on December 31, 2020 3. In order to achieve this
judgment, I will examine how EU nationals are at risk of discrimination in the UK. I
will use EU primary4 and secondary5 laws, as well as case law, to investigate the
rights of a variety of individuals, such as family members, who are residents and
have been discriminated against.
First and foremost, the UK-EU withdrawal agreement is an act of the UK Parliament
that establishes legal procedures for ratifying the Brexit Withdrawal Agreement and
incorporating it into UK domestic law. It is the result of the Brexit negotiations (the
United Kingdom's exit from the European Union). It went into effect on February 1,
2020, after being agreed on October 17, 2019. However, one controversial topic
throughout the discussion leading up to the withdrawal was the rights of EU citizens
in the UK and how they would be treated and the reason for this will become clear as
the essay continues.
The EU Settlement Scheme, on the other hand, came into effect as a result of the
Withdrawal Agreement between the UK and the EU. It is a scheme that gives an
individual the same healthcare, education, benefits, and pensions as a British citizen.
The deadline to apply for this scheme was June 30, 2021. Although, citizens with
family members who lived in the UK before December 31, 2020, are still eligible to
1
Eceuropaeu, 'The EU-UK Withdrawal Agreement'(European Commission, 12 November 2019)
<https://ec.europa.eu/info/strategy/relations-non-eu-countries/relations-united-kingdom/eu-uk-
withdrawal-agreement_en> accessed 30 November 2021
2
Wwwgovuk, 'Apply to the EU Settlement Scheme (settled and pre-settled status)' (Govuk, 2019)
<https://www.gov.uk/settled-status-eu-citizens-families> accessed 30 November 2021
3
Tom Edgington, 'Brexit: What is the transition period?' (Bbccouk, 1 July 2020)
<https://www.bbc.co.uk/news/uk-politics-50838994>accessed 5 December 2021
4
Consolidated version of the Treaty on the Functioning of the European Union [25 March
1957] OJ 1 115/13/1
5
Directive 2004/38/EC of the European Parliament and of the Council [2004] OJ 1 38/
, EU and International Law
apply. As a result, more than 5 million people have already applied for settled status
in the first few months of 2021 (Carey, Tanner and Gamester 2021) 6.
To start with, people all across the world have basic moral rights that their
governments must uphold and everything that goes against that should be opposed,
such as discrimination against individuals or citizens not receiving benefits to which
they are entitled. However, this is not the reality in the article written by Charlotte
O’Brien7, which claims that a “shocking” judgement from a top EU court allows the
UK to discriminate against EU nationals who have been given the right to work in the
UK following Brexit8. Not only does this decision impact millions of EU nations but it
also raises problems about what it means to have 'equal treatment' across the EU.
This is because the EU is all about not discriminating against anyone for any reason
and treating everyone equally, regardless of age, gender, race, religion, or other
factors and the decision in this article contradicts that.
This was performed when the CJEU upheld a UK provision, (The Social Security
Regulations 20199) that prevents some EU citizens from receiving benefits in the
country. The provision applies to those with 'pre-settled status', one of two new
statutes formed under the EU Settlement Scheme that allows EU nationals, including
family members, to remain in the UK after Brexit, the other being, a ‘settled status’.
Those who can demonstrate that they have been in the UK for five years or more are
granted settled status, whereas those who do not meet this requirement are granted
6
Sanna Elfving and Aleksandra Marcinkowska, 'Imagining the Impossible? Fears of Deportation and
the Barriers to Obtaining EU Settled Status in the UK' [25 June 2021] Vol 10(1) Imagining the
Impossible? Fears of Deportation and the Barriers to Obtaining EU Settled Status in the UK55-73
7
Charlotte O’Brien, Professor of Law, University of York
8
Charlotte O’Brien, 'Over 2 million EU nationals are at risk of discrimination in UK after shock EU
court ruling – here’s what happens next' (Theconversationcom, July 20,
2021) <https://theconversation.com/over-2-million-eu-nationals-are-at-risk-of-discrimination-in-uk-
after-shock-eu-court-ruling-heres-what-happens-next-164462> accessed 5 December 2021
9
The Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations
2019
To begin, my essay will focus solely on how the EU citizens residence rights, in the
UK, have altered since the UK-EU Withdrawal Agreement 1 was drafted and when the
EU Settlement Scheme2 was later implemented by the UK government before the
ending of the transitional term on December 31, 2020 3. In order to achieve this
judgment, I will examine how EU nationals are at risk of discrimination in the UK. I
will use EU primary4 and secondary5 laws, as well as case law, to investigate the
rights of a variety of individuals, such as family members, who are residents and
have been discriminated against.
First and foremost, the UK-EU withdrawal agreement is an act of the UK Parliament
that establishes legal procedures for ratifying the Brexit Withdrawal Agreement and
incorporating it into UK domestic law. It is the result of the Brexit negotiations (the
United Kingdom's exit from the European Union). It went into effect on February 1,
2020, after being agreed on October 17, 2019. However, one controversial topic
throughout the discussion leading up to the withdrawal was the rights of EU citizens
in the UK and how they would be treated and the reason for this will become clear as
the essay continues.
The EU Settlement Scheme, on the other hand, came into effect as a result of the
Withdrawal Agreement between the UK and the EU. It is a scheme that gives an
individual the same healthcare, education, benefits, and pensions as a British citizen.
The deadline to apply for this scheme was June 30, 2021. Although, citizens with
family members who lived in the UK before December 31, 2020, are still eligible to
1
Eceuropaeu, 'The EU-UK Withdrawal Agreement'(European Commission, 12 November 2019)
<https://ec.europa.eu/info/strategy/relations-non-eu-countries/relations-united-kingdom/eu-uk-
withdrawal-agreement_en> accessed 30 November 2021
2
Wwwgovuk, 'Apply to the EU Settlement Scheme (settled and pre-settled status)' (Govuk, 2019)
<https://www.gov.uk/settled-status-eu-citizens-families> accessed 30 November 2021
3
Tom Edgington, 'Brexit: What is the transition period?' (Bbccouk, 1 July 2020)
<https://www.bbc.co.uk/news/uk-politics-50838994>accessed 5 December 2021
4
Consolidated version of the Treaty on the Functioning of the European Union [25 March
1957] OJ 1 115/13/1
5
Directive 2004/38/EC of the European Parliament and of the Council [2004] OJ 1 38/
, EU and International Law
apply. As a result, more than 5 million people have already applied for settled status
in the first few months of 2021 (Carey, Tanner and Gamester 2021) 6.
To start with, people all across the world have basic moral rights that their
governments must uphold and everything that goes against that should be opposed,
such as discrimination against individuals or citizens not receiving benefits to which
they are entitled. However, this is not the reality in the article written by Charlotte
O’Brien7, which claims that a “shocking” judgement from a top EU court allows the
UK to discriminate against EU nationals who have been given the right to work in the
UK following Brexit8. Not only does this decision impact millions of EU nations but it
also raises problems about what it means to have 'equal treatment' across the EU.
This is because the EU is all about not discriminating against anyone for any reason
and treating everyone equally, regardless of age, gender, race, religion, or other
factors and the decision in this article contradicts that.
This was performed when the CJEU upheld a UK provision, (The Social Security
Regulations 20199) that prevents some EU citizens from receiving benefits in the
country. The provision applies to those with 'pre-settled status', one of two new
statutes formed under the EU Settlement Scheme that allows EU nationals, including
family members, to remain in the UK after Brexit, the other being, a ‘settled status’.
Those who can demonstrate that they have been in the UK for five years or more are
granted settled status, whereas those who do not meet this requirement are granted
6
Sanna Elfving and Aleksandra Marcinkowska, 'Imagining the Impossible? Fears of Deportation and
the Barriers to Obtaining EU Settled Status in the UK' [25 June 2021] Vol 10(1) Imagining the
Impossible? Fears of Deportation and the Barriers to Obtaining EU Settled Status in the UK55-73
7
Charlotte O’Brien, Professor of Law, University of York
8
Charlotte O’Brien, 'Over 2 million EU nationals are at risk of discrimination in UK after shock EU
court ruling – here’s what happens next' (Theconversationcom, July 20,
2021) <https://theconversation.com/over-2-million-eu-nationals-are-at-risk-of-discrimination-in-uk-
after-shock-eu-court-ruling-heres-what-happens-next-164462> accessed 5 December 2021
9
The Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations
2019
