UK ministers are being taken to court over allegations the government is breaking the law on EU citizens’ rights.
The High Court has granted the Independent Monitoring Authority (IMA), the statutory body set up after Brexit to safeguard the rights of EU citizens in the UK, a judicial review of Home Office rules.
The IMA alleges that 2.6 million EU citizens are at automatic risk of losing their right to live, work and retire in the UK and may face deportation because what it believes is an unlawful interpretation of the withdrawal agreement. That case is set to be heard on 1 November.
According to its website, the IMA’s central case is that it considers unlawful “the Home Office’s position that citizens who fail to either apply for settled status, or re-apply for pre-settled status, before the expiry of their pre-settled status, automatically lose their rights”.
Residency rights and the settlement scheme are at the core of the dispute, which revolves around the 2.6 million people who were granted “pre-settled status” because they had been in the country for fewer than five years.
Under Home Office rules these people have to reapply for the indefinite right to remain in the country once their pre-settled status expires. If they do not, they risk losing the right to be in the UK.
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The IMA contends in its High Court argument that the withdrawl agreement (WA) “does not provide for loss of status in such circumstances”.
Under the law, argues the IMA, EU citizens’ rights “do not expire” unless they are lost or withdrawn for reasons laid out in article 15 (3) of the WA.
That clause makes clear that “once acquired, the right of permanent residence shall be lost only through absence from the host state for a period exceeding five consecutive years”. This, said the IMA means that, “The right of residence is not limited in time, and in particular does not expire after five years (save in the case of extended absence from the UK).
The IMA said: “Automatic withdrawal of the right for a failure to make a further application within five years for a continued right of residence is incompatible with the WA, which makes no such provision.”
High Court papers by the IMA allege that the result of the loss of such rights is that people with pre-settled status will be “exposed to considerable serious consequences affecting their right to live, work and access social security support and housing in the UK, and will be liable to detention and removal.”
Most employees with citizenship in EU countries will already have settled status, but the legal action may give added protection to some of those still working in the UK with pre-settled status.
A Home Office spokesperson said: “In good faith we have put in place the arrangements agreed under the withdrawal agreement. As this is ongoing litigation, it would be inappropriate to comment further.”
Ruhul K Ayazi, head of UK immigration at Ogletree Deakins, said that, if successful, the IMA case could have implications beneficial to employers in right to work cases.
He said: “If the IMA are successful in their challenge, it would mean that EU citizens may no longer lose their right to live and work in the UK if they do not apply for settled status once their pre-settled status expires. It will also overcome potential issues for companies with their employees’ right to work in the event that an employee inadvertently forgets to apply for settled status.”
From 1 October 2022, adjusted right to work checks over a video call can no longer be carried out, with employers instead either conducting them face to face, or using the services of a digital identity service provider (IDSP).
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