High Court finds that EU Settlement Scheme is unlawful and those with pre-settled status should not need to apply for settled status
On 21 December 2022, the High Court found in Independent Monitoring Authority v Secretary of State for the Home Department [2022] EWHC 3274 (Admin) that the European Union Settlement Scheme (EUSS) is unlawful and that the Home Office cannot take away residence rights from someone with pre-settled status who has failed to apply for settled status. Furthermore, a pre-settled status holder automatically acquires settled status (in other words, indefinite leave to remain) when the conditions of Article 15 of the Withdrawal Agreement are met; there is nothing stating they must apply for permanent residence.
Although the Home Office is currently appealing, the findings of the judicial review suggest that European Union (EU) citizens in the UK will encounter a more welcoming environment and less red tape than they have previously.
The EU Settlement Scheme
The Home Office established the EU Settlement Scheme (EUSS) to enable EU citizens to legally remain here after the UK left the EU on 31 January 2020. The EUSS offered a route for citizens from the EU to stay and settle in the UK. Those who could prove they had lived in the UK for 5 years obtained ‘permanent status’ (also known as indefinite leave to remain). Those who could not show enough evidence, or who had been here for a shorter time, were given ‘pre-settled status’ for a period of 5 years, after which they could apply for permanent status.
The Independent Monitoring Authority
The Withdrawal Agreement, which was intended to structure Britain’s exit from the European Union, created the Independent Monitoring Authority (IMA) under Article 159. This body was formed to protect the rights of EU citizens after Brexit and address possible breaches.
Independent Monitoring Authority v Secretary of State for the Home Department [2022] EWHC 3274 (Admin)
The IMA became concerned that some EU citizens, having successfully applied and received pre-settled status, might fail (through forgetfulness, misinterpretation, or any other reason) to apply in 5 years’ time for settled status. As the IMA argued in its judicial review against the Home Office, an EU citizen should not lose all their residency rights simply because they had failed to take the step to gain ‘permanent’ status. Moreover, the IMA argued that the right of permanent status should be acquired automatically.
Mr. Justice Lane of the High Court acknowledged the gravity of the current situation facing EU citizens who would fail to convert their pre-settled status into settled status, referring to section 24 of the 1971 Act which states that overstayers are in the UK unlawfully and “a person who knowingly remains beyond the time limited by the leave commits a criminal offence.” The High Court was faced with two questions: firstly, could the Home Office take away the residence rights of those who forget to make an application for permanent status in time? Secondly, do EU citizens automatically acquire permanent residence when they meet the conditions, or do they need to apply?
Regarding the first question, the IMA argued that the Withdrawal agreement did not state or imply that EU citizens were required to make a second application to retain their rights. In Article 13(4) of the Withdrawal Agreement, it states that the host state “may not impose any limitations or conditions for obtaining, retaining or losing residence rights…other than those provided for in this title” (such as, for example, receiving a deportation order – Article 20). The High Court interpreted this to mean that an EU citizen with residence rights under the Withdrawal Agreement retains those rights, as long as they continue to meet relevant conditions. However, they found that making an application for settled status was not a condition.
The IMA’s second basis of challenge, namely that a person should not need to apply for permanent residence and instead automatically acquire it, was also examined by the High Court. Under Article 18(1) of the Withdrawal Agreement, residence status is referred to as singular and not plural. The Home Office argued that by residence status, it could be either temporary or permanent residence status and that EU citizens had the right to acquire permanent status as long as they made an application to do so. However, the High Court decided once again in favour of the IMA, stating that there was nothing in the Withdrawal Agreement requiring those with pre-settled status to apply for permanent residence. Mr. Justice Lane concluded that the Withdrawal Agreement was “wrong in law” and the “EUSS is accordingly unlawful” regarding the rights of residence as discussed above.
It should be noted that this judicial review is well in advance of any individual applicant’s issues, as anyone with pre-settled status is not set to have it expired until August 2023. Furthermore, the Home Office is currently appealing and therefore the outcome – and what EU citizens have to do, or not do, to maintain their immigration status in the UK – may soon be different. Nonetheless, it looks as if EU citizens going forward will find it easier to prove their right to remain.
By Tiffany