High Court Finds EU Settlement Scheme Unlawful

Following the departure of the UK from the European Union, the EU settlement scheme was set up by the British government to transition the lawful basis of residence for EU citizens to domestic UK law.

Under the scheme, EU citizens who started living in the UK by 31 December 2020, could apply for one of two types of status.

Settled status

For those who had lived in the UK for a continuous 5 year period. This gave the holder a right to live in the UK permanently.

Pre settled status

For those who had lived in the UK for less than 5 years. This gave the holder a right to stay in the UK for 5 years from the date the pre-settled status was granted. Those wishing to stay longer would have to apply for settled status before the expiry of their pre-settled status.

There are approximately 2.6 million people who have been granted pre settled status. EU citizens issued with pre-settled status are required to make a second subsequent application to convert their pre-settled status into permanent residence (settled status).

A failure to do so would render them as overstayers and unlawfully resident in the UK.

Independent Monitoring Authority v Secretary of State for the Home Department [2022] EWHC 3274 (Admin) (21 December 2022)

The Independent Monitoring Authority (IMA) (set up with a duty to investigate alleged breaches of the rights of EU citizens after Brexit) argued in a judicial review that pre settled status holder should not lose all of their rights for failing to make the secondary application within the prescribed time limit. The IMA further argued that this was not compatible with the terms of the UK-EU withdrawal agreement which notes that the holders should acquire the right of permanent residence automatically when the conditions are fulfilled.

The High Court agreed with the IMA and noted that the terms of the withdrawal agreement do not allow for an individual to lose their residence right because they failed to make a second application under the scheme.

Mr Justice Lane held that 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.

What next following the ruling on the EU Settlement Scheme?

It is not yet clear what the full impact of this decision will likely be, and The Home Office has indicated that it intends to appeal the judgment. However if the decision is upheld, it will require the government to change the law. In the meantime, the law remains unchanged and whilst it remains uncertain, those with pre-settled status should apply for settled status where possible.  

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