UK EU Settlement Scheme found to be "unlawful" by the High Court

Brexit fall out continues as the High Court finds in the case of Independent Monitoring Authority v Secretary of State for the Home Department that the EU Settlement Scheme is "unlawful" and breaches the UK-EU Withdrawal Agreement because it fails to adequately protect the rights of EU citizens.

What is the EU Settlement Scheme?

EU citizens residing in the UK by 31 December 2020 and their family members are eligible for the right to remain in the UK indefinitely under the EU Settlement Scheme (EUSS) (subject to meeting the requirements). The deadline for applications was 30 June 2021.

When making an application under the EU settlement scheme, EU citizens were granted either settled or pre settled status. The rights available will be different depending on which status they get. To qualify for settled status you would need to show that you have lived in the UK for a continuous period of five years. If you could not satisfy this condition but satisfied other eligibility requirements, you would be granted pre-settled status with a limited leave to remain for five years.

Individuals granted pre-settled status, need to reapply under the scheme for settled status before their leave expires. Failure to do so would result in the individual losing their right to remain in the UK and thus becoming an overstayer which would have a significant impact on their ability to live and work in the UK.

High Court Case

The Claimant in the case are an independent public body funded by the Government to protect the rights of EU citizens living in the UK. They sought judicial review of the scheme on the basis that the Government was breaching the withdrawal agreement negotiated with the European Union by requiring EU citizens to reapply for settled status before the end of their pre-settled status.

The court was called on to answer two questions:

1. Does the Withdrawal Agreement permit the Home Office to take away the residence (and other rights), of pre-settled status holders who fail to make a further application for settled status (or in limited situations for further pre-settled status)?
2. Is the acquisition of permanent residence by temporary residence holders dependent on a second application, or does permanent residence occur automatically when a person's situation meets the relevant conditions.

Upper Tribunal President Mr. Justice Lane held that this was wrong in law as residents' rights could only be lost in specifically defined circumstances, such as staying outside the UK for too long, and that a failure to apply to upgrade to settled status is not one of those circumstances.

Further, a person with residence rights under the Withdrawal Agreement retained those rights for life, as long as they continued to meet the relevant conditions; conditions which did not include making a subsequent immigration application.

Comment

Given the significant issues posed and the number of EU citizens potentially affected, it seems unlikely that this ruling will be the end of the matter and the Home Office will appeal the decision.

No one with pre-settled status should find their status coming to an end until at least August 2023, five years after the scheme launched.

However, individuals with pre settled status should continue to apply for settled status when they have completed a continuous period of 5 years residence in the UK. Individuals do not need to wait until the end of their Pre-Settled Status leave and should make an application as soon as they have completed 5 years residence since arriving in the UK.

Employers should also continue to monitor visa expiry dates for employees with pre-settled status.

If you have any questions regarding the scheme or monitoring employees right to work, please contact our immigration team.