EUSS family permit > Pre-Settled Status - covered as an individual by EEA regs?

If you are arriving in the UK now to join a family member who already has Pre-Settled Status and you then apply for and are granted Pre-Settled Status in your own right - can you have a free movement right to reside based on your own circumstances (e.g. as a worker) rather than as a family member, despite arriving after withdrawal?

Hi Tom,

This: https://commission.europa.eu/strategy-and-policy/relations-non-eu-countries/relations-united-kingdom/eu-uk-withdrawal-agreement/citizens-rights_en

says this: The substantive conditions of residence are, and will remain, the same as those under current EU law on free movement.

In essence, EU citizens and UK nationals meet these conditions if they:

are workers or self-employed;
have sufficient resources and sickness insurance;
are family members of another person who meets these conditions;
have already acquired the right of permanent residence and are therefore no longer subject to any conditions.

The Withdrawal Agreement does not require physical presence in the host state at the end of the transition period – temporary absences that do not affect the right of residence and longer absences that do not affect the right of permanent residence are accepted.

I don’t know if this stretches to these rights to being protected for EU Citizens who arrive in the UK for the first time after 01/01/2021 but I would think it provides grounds to apply for free movement rights as well as Pre-Settled status.

If you do pursue this, please can you let us know if it is successful.

Regards

Chris

Thanks Chris - that was helpful but the more I research this, the more I convince myself it is not possible so I would be very grateful if anyone could correct me on the following…

Family members come within full personal scope of the Withdrawal Agreement once they join the family member in the UK [art 10. 1 (e) (ii)] but as far as I can see they do not have an independent right to access assistance without these rights being derived from the family member they have joined.

If their only right at the end of the transition period was as a family member, article 17 prevents them from becoming somebody independently protected under art 10 (1) (a-d).

In domestic law, if you have pre-settled status, then you are a “member of the post-transition period group” and can rely on the whole range of rights formerly contained in the I(EEA) Regs 2016, for benefit purposes, as though they were still in force. It isn’t necessary to consider how you got your PSS. See schedule 4, para 1(b), 2 and (for UC) 3(w) of the succinctly titled Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020.

On the Withdrawal Agreement, I don’t think that art. 17 provides any basis for objection. Once you are within the personal scope of the WA - in this instance by reference to art. 10(1)(e) - you can have recourse to the relevant provisions of the WA; including the ability to rely on the various EU law residence rights referred to at art. 13. Someone moving around between the different residence rights referred to at art. 13 doesn’t offend against art. 17 because - in particular - doing so doesn’t change the fact that they are still relying on art. 10(1)(e) as the basis for claiming that they are within the personal scope of the WA.

Thanks Elliot. Incredibly helpful as always.