Elements of the EU Settlement Scheme enabling EU citizens to live and work in the UK after the Brexit transition date have been ruled unlawful by the High Court.
The Independent Monitoring Authority, a body set up to oversee citizens’ rights, took legal action against the Home Office in November. It argued that the UK would be breaching its withdrawal agreement with the EU if it required EU citizens to reapply for the right to live and work here.
Employees needed to have applied for settled status by 30 June 2021 or risk being deemed illegal workers by the Home Office.
Those who had lived in the UK for a continuous five-year period were granted settled status, while those here for a shorter period could apply for pre-settled status.
The IMA challenged the Home Office position that citizens with pre-settled status must make a second application to the Scheme or face losing their rights under Part 2 of the withdrawal agreement. Currently all citizens with pre-settled status must apply for settled status after they have lived in the UK for five years.
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Rhys Davies, IMA general counsel,said the body had brought the case as “we wanted to avoid the risk that citizens with pre-settled status who fail to make a second application to the EUSS after the expiry of their pre-settled status following five years of residence in the UK, lose their rights”.
“The earliest point this could happen is in August 2023, marking five years from the earliest grants of pre-settled status.”
Robert Palmer, representing the IMA, argued to the court that those who did not make an application within five years of being granted pre-settled status would “automatically lose their right to residence in the UK”, and all the rights dependent on this.
He said this aspect of the EU Settlement Scheme was “straightforwardly incompatible with the withdrawal agreement”. A similar scheme for citizens from the European Economic Area and European Free Trade Association were also deemed in breach of the agreement.
At the High Court, Judge Peter Lane ruled that the British government’s interpretation of the withdrawal agreement was “wrong in law” and the settlement scheme was unlawful. He granted the Home Office permission to appeal against his decision.
He added that the right of residence can only be lost in very specific circumstances which are clearly defined in the EU Withdrawal and EEA EFTA Separation Agreements.
MA chief executive Kathryn Chamberlain said in a statement: “I am pleased that the judge has recognised the significant impact this issue could have had on the lives and livelihoods of citizens with pre-settled status in the UK.”
“When we brought this judicial review, our intention was to provide clarity for citizens with pre-settled status, of which there were over 2.4 million when we filed this case in December 2021.
“This judgment that the current system is unlawful provides that clarity. We will now liaise with the Home Office on the next steps.”
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The Home Office is understood to be seeking an appeal to the decision.
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