IMA Welcomes Home Office Decisions On Measures To Implement Landmark Judgment

The judge had ruled in favour of the IMA in December 2022 and clarified that the Withdrawal Agreement residence right of a person with pre-settled status does not expire because someone does not make a second application to the scheme, provided they continue to meet the necessary conditions.

The judgment also found that irrespective of an application for settled status, those who have lived here for five years and have continued to meet the relevant conditions (as set out in the Agreements) are automatically entitled to permanent residence rights under the relevant Agreements.

The IMA raised significant concerns with the Home Office about its original measures to implement the judgement and discussed further changes to mitigate these issues.

In the IMA’s view, the Home Office’s initial approach of automatically applying a two-year extension to pre-settled status holders shortly before they approach their current date of expiry did not go far enough to address the judgment. This was because it could potentially adversely impact their rights.

The IMA was concerned this position may have continued to cause challenges for citizens, for example with employment or housing, due to the continued temporary nature of pre settled status being visible to third parties when checking a citizens’ status. The judgment was clear, status should not expire providing the person continues to meet the underlying conditions.

The IMA emphasised its concerns about this approach by the Home Office and sought a review of how they were implementing the judgment. The Home Office has now outlined several further changes it intends to make, some of which have been undertaken. These include:

  • Removal of pre-settled expiry dates from View & Prove and right to work (including licensing) and right to rent checking services for third parties – this has now been undertaken;
  • Removal of the requirement for employers and landlords to carry out follow-up checks once pre-settled status has been initially determined;
  • A five-year extension to pre-settled status instead of the current two-year extension and;
  • A public statement to make it clear to citizens how the judgment is being implemented.

Miranda Biddle, Chief Executive of IMA said: “From the outset we have always been clear that the court’s ruling is implemented in a manner that provides clarity and practical resolution for citizens.

“At the same time, it is crucial that in implementing the judgment, the uncertainties being faced in relation to citizens’ ability to access and prove their rights are addressed and concluded.

“We therefore welcome the package of measures which the Home Office has announced they will be putting in place as a pragmatic way of ensuring the principles of the judgment are upheld.

“This will mean that citizens with pre-settled status are assured they will not experience issues when proving their rights to  work and rent  as their digital status end-date will not be visible to landlords, employers and other external third parties.

“The IMA will continue to hold the Home Office to account and will now be monitoring how these measures are implemented.”

The IMA will also continue to give updates on this issue and will be seeking assurance on how these changes are made. We also reserve the right to take further action, including litigation, if necessary, if these measures do not prove effective in ensuring that the rights of citizens are upheld.

Anyone facing difficulties accessing their rights is encouraged to contact the IMA for support.

For more information visit the IMA’s website for detailed information on the rights of EU and EEA EFTA citizens and their family members who have applied to the EUSS.

Citizens’ Rights’ Watchdog Calls For Resolution On Landmark High Court Case Implementation

The judge ruled in favour of the IMA and clarified that the Withdrawal Agreement residence right of a person with pre-settled status does not expire for failure to make a second application to the scheme. This is provided they continue to meet the conditions for it.

The judgment also found that, irrespective of an application for settled status, those who have lived here for five years and have continued to meet the relevant conditions (as set out in the Agreements), are automatically entitled to permanent residence   rights under the relevant Agreement.

In the IMA’s view, the current Home Office approach of automatically applying a two-year extension to all pre-settled status holders shortly before they approach their current date of expiry does not go far enough to address the first aspect of the High Court’s ruling. This is because it could potentially adversely impact their residency rights.

The IMA is concerned that this  approach may continue to cause challenges for citizens, for example with employment or housing, due to the continued temporary nature of pre settled status being visible on official documents. However, status should not expire in practice providing the person continues to meet the underlying conditions.

The IMA is holding regular meetings with the Home Office to better understand its plans for how the judgment will be implemented. We understand that the Home Office is nearing a final view on proposals that seek to provide practical solutions for citizens. The IMA will continue to promote workable resolutions and monitor the effectiveness of any changes.

Miranda Biddle, Chief Executive of IMA said:

“The IMA is keen to ensure that citizens’ rights are upheld and the court’s ruling is implemented in a manner that provides clarity and practical resolution for citizens.

It is crucial that in implementing the judgment the uncertainties being faced  in relation to citizens’ ability to live, work and raise their families in the UK are addressed and concluded.

The IMA will continue to hold the Home Office to account and urge them to implement the necessary changes when finalised.”

Anyone facing difficulties accessing their rights is encouraged to contact the IMA for support. There are also a number of supporting organisations listed on our website who can assist with EUSS applications. If you would like to share information with the IMA on behalf of EU and EEA EFTA citizens, then please visit www.ima-citizensrights/report-a-complaint

 

Interim Chair Appointed to IMA

This follows the resignation of Sir Ashley Fox after being selected as the Parliamentary Candidate for the Bridgwater constituency for the Conservative Party.

Leo has been a Board Member and Deputy Chair of the IMA since its inception in December 2020. He is a Member of the Senate of Queen’s University Belfast and a member of the Council of the Institute of Professional and Legal Studies in Belfast.

Leo said, “I have thoroughly enjoyed being a part of the IMA Board for the past three years as we have established ourselves to undertake the important work of the IMA to monitor and promote how the rights of EU and EEA EFTA citizens and their family members are upheld by public bodies.

“I am proud of what has been achieved so far and am delighted to take on the role of Interim Chair to help continue the good work of the IMA until a permanent Chair is in place.”

Chief Executive of the IMA, Miranda Biddle said: “I am grateful for the support Leo has provided to the IMA since Sir Ashley stood down from his role. I look forward to continuing to work with Leo to ensure the IMA is fulfilling its duties to promote and protect the rights of those EU and EEA EFTA citizens who have rights under the Withdrawal and Separation Agreements so that they can continue to live, work and raise families, here and in Gibraltar, as they did before the UK left the EU.”

The IMA, Ministry of Justice and the public appointments team are now working at pace on the recruitment process for the permanent position of Chair of the IMA.

Full details of the recruitment process can be found here.

Citizens’ Rights Watchdog Welcomes Supreme Court Appeal Decision

This means that the Court of Appeal’s decision stands, which we welcome due to the clarity that this decision gives on key areas of the Withdrawal Agreement.

The IMA, which was set up to monitor and promote the rights of EU and EEA EFTA citizens and their family members, had intervened in the case which concerned whether the SSWP had breached the rights of an EU citizen (AT) by refusing her claim for Universal Credit.

The SSWP had said that AT was not allowed to claim Universal Credit as while she had pre-settled status, she did not have a qualifying right to reside such as being a worker and therefore was ineligible to claim this benefit.

AT successfully argued throughout the courts, including in the Upper Tribunal and Court of Appeal, that in refusing her Universal Credit, the SSWP had breached her Withdrawal Agreement rights. The courts consistently found that the protection in the Charter of Fundamental Rights to be able to live in dignified conditions applies under the Withdrawal Agreement in certain circumstances.

The IMA’s independent view was that AT was able to rely on her Charter right to live in dignified conditions and therefore was able to access Universal Credit. This was also the basis of AT’s case. The Court of Appeal agreed.

The decision of the Supreme Court now means that other citizens who have had their claims for Universal Credit put on hold for similar reasons to AT will now have to have their claims decided.

The IMA also believes that the decision has a broader impact and will continue to speak to the SSWP about how he will implement the judgment and will provide further updates when these are available.

General Counsel for the IMA, Rhys Davies said, “We intervened in this matter as it is a case of significant public importance concerning the interpretation of the Withdrawal Agreement and also the continued role of the Charter following the end of the transition period. We now have clarity from the courts and can move to ensure that those within scope of the Withdrawal Agreement can fully access their rights.”

The Court of Appeal hearing was listed on 8-10 March 2023. The IMA’s skeleton argument can be read here and the judgment here.

The IMA encourages any citizen experiencing difficulties in exercising their rights to make them aware of this through their online portal.

If you are engaging in litigation in relation to your Withdrawal Agreement rights, please tell us by sending us details at litigation@IMA-citizensrights.org.uk. It helps to inform us where there may be issues with citizens accessing their rights.

Citizens Rights Watchdog Gives Update on Judicial Review

In December 2022, the High Court found certain aspects of the EU Settlement Scheme (EUSS) to be unlawful. The Court’s ruling affects more than two million EU and EEA EFTA citizens with pre-settled status.

The judge ruled that individuals with rights under the Agreements should not lose their right to live in the UK if they do not make a second application to the EUSS. Also, those with pre-settled status automatically acquire permanent residence rights once they have lived here for five years and met the relevant conditions under the Agreements.

The EUSS is the way which EU and EEA EFTA citizens and their family members secure the right to live in the UK. There are two types of EUSS status: pre-settled status for those that have lived in the UK for under five years and settled status, usually for those who have lived here for over five years.

The Home Office plans to address the High Court’s judgment by granting a two-year extension of pre-settled status for those who haven’t switched to settled status shortly before their original expiry date, automatically converting as many pre-settled status holders to settled status as possible and ensuring individuals can rely on their permanent residency rights once acquired.

The IMA is concerned that a two-year extension for pre-settled status does not address the Court’s ruling and that citizens may face challenges in areas of their lives, such as employment or housing due to the temporary nature of pre-settled status being reflected on official documents.

It is also highlighting a lack of clarity for citizens and authorities regarding automatic acquisition of permanent rights, leading to potential confusion.

The IMA is urging the Home Office to make a public statement clarifying the rights of citizens under the Agreements.

Miranda Biddle, Chief Executive of IMA said: “We continue to work with the Home Office to resolve potential issues arising from the proposed implementation of the High Court judgment. While the Home Office has been effective in many cases, some citizens face uncertainty impacting their ability to live, work, and raise families in the UK.”

The IMA will continue to give updates on this issue but in the meantime, anyone facing difficulties accessing their rights is encouraged to contact the IMA for support.

For more information visit the IMA’s website for detailed information on the rights of EU and EEA EFTA citizens who have applied to the EUSS.

For further informaiton on changes to the EU Settlement Scheme as a result of the Judicial Review please visit the FAQs section of our website.

Citizens’ Rights Watchdog Marks Third Year in Operation

The IMA was established at 11pm on 31 December 2020. We were set up to monitor public bodies in the UK and Gibraltar to ensure they are upholding citizens’ rights as well promote the rights to which EU and EEA EFTA citizens and their family members are entitled to receive.

These rights broadly give European citizens the rights to live here, working, studying and raising their families as they did before the UK left the EU.

During our first three years in operation some of the work we’ve undertaken has included:

The IMA encourages citizens and their family members who believe their rights are not being upheld to make them aware of this through their online portal.

Miranda Biddle, IMA Chief Executive said:

“When the IMA launched three years ago it was with a clear intent to do all we can to make sure the lives of EU and EEA EFTA citizens and their family members living here and in Gibraltar, raising their families, working, studying and receiving support where needed could continue as normal after the UK left the EU.

“As part of this we have always been keen to work with public bodies to ensure we can bring swift resolution to any issues so that citizens receive those rights to which they are entitled with as little inconvenience and interruption as possible.

“From the work we have undertaken I think we have demonstrated that we are not afraid to take action where it is needed and we look forward to continuing to work with public bodies and our stakeholders to ensure that citizens and their family members can continue to exercise their rights.”

 

IMA survey identifies concerns about current and future protection of citizens’ rights

The survey, which was completed by nearly 1,000 EU and EEA EFTA citizens found that:

  • 62% of respondents felt they had not been discriminated against based on their nationality.
  • 58% of respondents reported experiencing no difficulties in accessing their rights.
  • 7 in 10 respondents reported awareness of their citizens’ rights.

Encouraging results from the survey show a continued increase in awareness of citizens’ rights with 7 in 10 respondents reporting awareness of their rights. Only 1 in 2 citizens were aware of their rights in the IMA’s first annual survey in 2021.

Although the majority of respondents reported no difficulties in accessing their rights, the IMA continues to recommend all UK public bodies build confidence with EU and EEA EFTA citizens, their family members, and eligible third country nationals that their rights will be protected.

The survey highlighted that 86% of all respondents indicated they had low or no trust in public bodies. This is the third year that survey results have demonstrated reducing citizen confidence.

Survey respondents made reference to the UK political environment, Windrush and futureproofing of conferred rights being influencing factors in their trust of Government and Public Authorities.

Governments in the UK and Gibraltar must also continue to promote rights in legislation, policy, and practice across all demographics, with particular concern for hard to reach, vulnerable and marginalised citizens.

Pam Everett, IMA Director of Operational Delivery said:

“As an organisation we are pleased that awareness of citizens’ rights continues to increase. We recognise that we must continue to build awareness of our organisation in order to continue to build citizens’ confidence and trust so that they are empowered to share their experiences with us so that we can take action where it is needed.”

The results of this year’s survey serve as a reminder for all public bodies to continue to build trust with EU and EEA EFTA citizens and their family members by promoting and protecting their rights.

“Governments in the UK and Gibraltar must also continue to promote rights in legislation, policy, and practice across all demographics, with particular concern for hard to reach, vulnerable and marginalised citizens to ensure that citizen’s rights are protected and confidence is improved”

 

Citizens’ Rights Watchdog Gives Update on Judicial Review

The High Court found in December 2022 that parts of the EU Settlement Scheme (EUSS) were unlawful following legal action by the IMA.

The EUSS was developed by the Home Office before the UK exited the European Union. EU and EEA EFTA citizens resident in the UK by 31 December 2020, and their family members, are required to apply to this scheme to remain living in the UK.

Under the EUSS, citizens who have been living in the UK for less than five years usually receive what is called pre-settled status. Those who have lived here for at least five years usually receive settled status.[1]

If someone has pre-settled status, they were originally required to apply for settled status within five years of being granted pre-settled status. A failure to do so would result in them losing their rights, including the right to live and work in the UK. The High Court decided this loss of rights was not permitted by the Withdrawal Agreement and the EEA EFTA Separation Agreement (the Citizens’ Rights Agreements).

The Home Office has informed us that its plans to implement the High Court judgment consist of:

  • An extension of their pre-settled status of two years for those who have yet to convert to settled status. The extension will take effect a short time before the current expiry date of their pre-settled status.
  • Using government data to automatically upgrade pre-settled to settled status where the required five years of residence has been met.
  • Some changes to ensure those with pre-settled status who automatically achieve permanent residence rights under the Citizens’ Rights Agreements are able to rely on those enhanced rights.

Alongside the process of automatically upgrading pre-settled status to settled status and the two-year extension of pre-settled status, the Home Office also plans to take steps to remove pre-settled status from those who have ceased to meet the relevant conditions contained in the Citizens’ Rights Agreements. This will be subject to a right of appeal.

While details of the plans continue to be developed by the Home Office, the IMA has concerns with some elements of them.

The IMA believes that an extension of pre-settled status does not go far enough to implement the judgment and that therefore this element continues to be incompatible with the Agreements. The extension does not change the fact that pre-settled status is time limited.

The IMA is concerned that maintaining that expiry period for pre-settled status may have practical effects on citizens exercising their rights, for example those who are seeking employment or accommodation. A prospective employer or landlord may, albeit wrongly, discriminate against a citizen who holds pre-settled status that is due to expire soon.

While plans for automatic upgrade from pre-settled status to settled status continue to be developed by the Home Office, the IMA does not have sufficient detail to make a full assessment of them. However, the IMA will want to be assured that any relevant processes, in particular where citizens may lose their residence status, are undertaken fairly and in line with the requirements of the Agreements.

These elements of the plans are not directly for the purpose of implementing the judgment and the IMA understands that they are not to be implemented until later in 2024. The IMA will provide further updates as the Home Office plans develop.

The IMA remains concerned about the implementation of the second part of the High Court’s judgment. This found that permanent residence rights under the Agreements accrue automatically to a pre-settled status holder where the relevant conditions in the Agreements are met.

Plans to automatically upgrade pre-settled status holders to settled status will hopefully ensure the permanent residence rights of more citizens will be reflected by their EUSS status. However, there will remain a lack of clarity for citizens and public authorities regarding the rights of some citizens who hold pre-settled status but who are in fact in possession of permanent residence rights.

The IMA believes that it is unreasonable to expect citizens to be fully aware of their enhanced permanent residence rights where they continue to hold pre-settled status and to know that these rights override any domestic laws, policies or decisions which fail to recognise them.

The Home Office is continuing to encourage people to obtain secure evidence of their permanent residence rights in the UK by applying to switch from pre-settled to settled status as soon as they are eligible to do so. The IMA also encourages people who are eligible for settled status to make an application to switch from pre-settled status to settled status.

The IMA is also asking the UK Government to make a public statement confirming the permanent residence rights of those with pre-settled status who have met the relevant conditions. This will help ensure that those citizens are able to rely on their permanent residence rights if they have not obtained settled status under the EUSS.

Chief Executive of the IMA Miranda Biddle said:

“We are keen that we continue to work with the Home Office to make sure that we can resolve any potential issues which could arise as the result of its proposed implementation of the High Court judgment.

“We recognise that in the majority of cases the Home Office has worked effectively and at pace to ensure EU and EEA EFTA citizens are able to exercise their rights as outlined in the Citizens’ Rights Agreements. We do, however, remain concerned that some citizens with pre-settled status face continued uncertainty and potential impact on their ability to live, work and raise their families in the UK as provided for in the Agreements.”

The IMA will continue to provide further updates on its engagement on this issue when information is received and assessed.

Anyone experiencing difficulties accessing their rights is encouraged to contact the IMA.

More information about the rights of EU and EEA EFTA citizens who have applied to the EU Settlement Scheme can be found on the IMA’s website.

The rights we refer to include the right to work, access healthcare and education and apply for housing and benefits.

You can also read more about the work of the IMA and download and share resources such as leaflets about citizens’ rights.

[1] In some limited circumstances, it is possible to qualify for settled status after less than five years’ residence.

Court of Appeal Hands Down Judgment

The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) which was set up to ensure that public bodies uphold the rights of EU and EEA EFTA citizens, and certain members of their families, within the UK and Gibraltar had intervened within the proceedings.

The case, which concerned the application of the Charter of Fundamental Rights of the European Union (“the Charter”) under the framework of the Withdrawal Agreement following the UK leaving the EU, was previously heard in the Upper Tribunal. The IMA also intervened within the Upper Tribunal, and further details of that intervention are available on the IMA’s website.

In the Upper Tribunal proceedings, amongst other points, AT argued that in refusing her Universal Credit, the Secretary of State for Work & Pensions (“SSWP”) had breached her Charter rights, those rights flowing through following the end of the transition period under the Withdrawal Agreement. The Upper Tribunal held that the Charter was indeed applicable under the Withdrawal Agreement in certain circumstances. The SSWP was given permission to appeal to the Court of Appeal, with the IMA subsequently being granted permission to intervene within this important appeal.

As with the proceedings below, the IMA considered it appropriate to intervene in this appeal to promote the adequate and effective implementation or application of the citizens’ rights contained within Part 2 of the Withdrawal Agreement.

This is a key case of significant public importance, and concerns the interpretation of the Withdrawal Agreement. The fundamental question in the appeal concerns the continued role of the Charter following the end of the transition period, which in turn raises the question as to how the Court of Justice’s decision in CG (Case C-709/20) applies under the Withdrawal Agreement. Due to the IMA’s statutory role, it considered that it could add real value by intervening within the proceedings.

The Court of Appeal hearing was listed on 8-10 March 2023. The IMA’s skeleton argument can be read here.

The IMA encourages any citizen experiencing difficulties in exercising their rights to make them aware of this through their online portal. Further information about the IMA and guidance on how to report complaints can also be found on the IMA’s website.

The IMA is keen to hear about any litigation relating to Part 2 of the Withdrawal Agreement or EEA EFTA Separation Agreement, and would encourage those litigating in this area to forward details to litigation@ima-citizensrights.org.uk.

 

IMA is assured that local authorities in Wales are protecting the rights of EU looked after children and care leavers

Following the UK’s departure from the EU, all eligible citizens, including children, are required to apply to the EU Settlement Scheme (EUSS) to guarantee their rights to live, work, study, and access benefits in the UK.  

In October 2022, the IMA launched a review of local authorities across the UK to establish how they identify looked after children and care leavers who need to apply to the EUSS, and the procedures put in place to monitor those applications.  

The initial review sought information in three key areas; identification, record keeping and retrospective checks, with each local authority categorised as red, amber or green in a grading system. 

An interim report for all local authorities in Wales found only one local authority’s response achieved a green grading for each of the three key areas, with six other local authorities meeting the green status in two of the three key areas. 

Following the report, the IMA worked collaboratively with each local authority during a compliance period before a final review was made.  

As a result of further engagement, the IMA identified that the majority of local authorities in Wales had outlined robust processes in place to identify and support eligible cohorts in line with Home Office guidance.  

In addition, the IMA made recommendations for improvements and offered further support to aid understanding of the EUSS. This has helped improve the identification and support for eligible cohorts. 

Several authorities have reported taking proactive measures to improve their processes and procedures and management information and reporting systems, and others have developed additional guidance for staff delivered through awareness and training. Notably, this has led to better identification by local authorities of eligible children and care leavers for the scheme, as well as being able to signpost eligible family members. 

As a result of the measures taken by local authorities in Wales, the IMA is assured that all 22 local authorities are protecting the rights of EU looked after children and care leavers. 

Pam Everett, IMA Director of Operational Delivery said:  “The IMA has welcomed the positive collaboration with local authorities in Wales, along with the support of Albert Heaney, Chief Social Care Officer for Wales, The Welsh Government in encouraging local authority engagement.

“Most importantly however, this work has resulted in additional numbers of children being identified as eligible for the EU Settlement Scheme, and upon successful application will guarantee their rights to continue to live, study and work in the UK.”

The review of all local authorities in Wales has now concluded with ongoing reviews across England, Scotland, and Northern Ireland.