Examination of Witness

Part of Immigration and Social Security Co-ordination (EU Withdrawal) Bill – in a Public Bill Committee at 2:55 pm on 14th February 2019.

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Professor Smismans:

No, this is new because it has been put in place in the context of Brexit. It is not a process one had before. Before, one had the process of permanent residence applications, which hardly anyone applied for, because they did not feel the need for it. That process of permanent residence was exactly a declaratory process. If you had the document, it was convenient for you to show that you had that status. If you did not have the document, that was not a problem. It is a declaratory status.

What we will get is completely the opposite, which is why we say we need a declaratory process, so that the sole fact of not having the document does not mean that you do not have the rights. It just means that, at that stage, you cannot prove it because you do not have the document, but you should still be able to apply to get the document even after the deadline. That is the difference between the declaratory and constitutive systems.