Independent Monitoring Authority successful in landmark High Court challenge against Home Office

The IMA was established to ensure that public bodies uphold the rights of EU and EEA EFTA citizens, and certain members of their families, living in the UK and Gibraltar. It challenged the Home Office’s position that citizens with pre-settled status must make a second application to the EU Settlement Scheme (EUSS) or face losing their rights under Part 2 of the Withdrawal Agreement.

During a judicial review hearing at the Royal Courts of Justice on 1 and 2 November, the IMA argued that it was unlawful for citizens to lose their rights if they failed to either apply for settled status, or in some circumstances re-apply for pre-settled status, before the expiry of their pre-settled status.

Currently all citizens with pre-settled status must apply for settled status after they have lived in the UK for five years. If they do not apply, they will lose their residence rights in the UK under the current system. This means they will also lose rights dependent on this, including the ability to work in the UK, receive healthcare and education and apply for housing and benefits.

In the judgment which was handed down on 21 December, Mr Justice Lane ruled that a right of residence can only be lost in very specific circumstances which are clearly defined in the EU Withdrawal and EEA EFTA Separation Agreements.

A loss of rights for failure to upgrade from pre-settled to settled status was not one of those circumstances, and so by imposing a requirement to upgrade residence status the Home Office was acting unlawfully. The judge also said that those granted pre-settled status are entitled to reside permanently in the UK once they have resided there for the required five-year period.

As a result of his findings, the judge has made a declaration that the EUSS in these respects, as it is currently operating, is unlawful.

The IMA understands that the Home Office is seeking permission to appeal the decision. While that process continues, no changes to the current design of the EUSS are expected and therefore holders of pre-settled status should continue to apply for settled status where they are eligible.

Dr Kathryn Chamberlain, IMA Chief Executive said:

“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 approximately 2.2 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.”

Rhys Davies, IMA General Counsel said:

“The Withdrawal and Separation Agreements say that people can only lose their rights in a limited set of circumstances and failing to upgrade from pre-settled to settled status is not one of them.

“We brought this 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.”

Notes:

• Read the judgment in full via the IMA’s website.
• Read other documents relating to this case on the IMA’s website including:
  • The IMA’s skeleton argument.
  • The IMA’s Statement of Facts and Grounds.
  • The IMA’s initial press release and the release about receiving permission for a hearing.

• The Citizens’ Rights Agreements refer to Part 2 of the Withdrawal Agreement and EEA EFTA Separation Agreement (as well as the Swiss Citizens’ Rights Agreement).
• Under the EU Settlement Scheme, citizens are eligible for settled status usually when they have lived in the UK for a continuous five-year period. Those who haven’t spent a continuous five-year period in the UK are usually granted pre-settled status and can stay in the UK for a further five years before needing to either reapply for pre-settled status or upgrade to settled status.
• According to Home Office statistics, there were approximately 2,151,270 million citizens with pre-settled status as of 31 December 2021. As of 30 September 2022, approximately 2,159,770 people held pre-settled status.

This release has been updated

In a previous issue of this release we said we hoped this judgement helped to clarify the situation for 2.4 million citizens who had pre-settled status at the time of submitting this case to the court in December 2021.This refers to the number of people who at that time had been granted pre-settled status by the Home Office.

However, in December 2021, some 200,000 people had upgraded their status from pre-settled to settled status therefore at the time of submitting the case the number of people with pre-settled status was 2.2 million. We have since updated the press release to reflect this.