Citizens’ Rights Watchdog Gives Update on Judicial Review

The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) continues to be concerned about the implementation of the High Court judgment in relation to rights under the Citizens’ Rights Agreements and continues to work with the Home Office to seek assurance that the action taken addresses the findings of the judgment.

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.