Parts of the EU settlement scheme, the residence system for EU citizens in the UK post-Brexit, are unlawful and need to change, the UK High Court has ruled. The decision concerns the requirement for EU citizens with pre-settled status to complete a second application to obtain full residence rights or face the loss of jobs, social benefits and even deportation from the UK.
The Court said these provisions in UK law are not in line with the withdrawal agreement, the international treaty governing the UK exit from the European Union. But eligible pre-settled status holders are urged to continue applying for full settlement.
What is pre-settled status
As the UK has abolished EU free movement rules, the withdrawal agreement secured residence rights for EU citizens who had moved to Britain, and for British citizens who had moved to EU countries, before 31 December 2020.
The UK government designed the EU settlement scheme to put in place these provisions. Under such rules, eligible EU citizens would get permanent residence (or ‘indefinite leave to remain’) if they applied for settled status, after living 5 continuous years in the UK. Those with less than 5 years of residence would be granted ‘pre-settled status’, a temporary residence status, and the right to complete the 5-year period.
Pre-settled status holders, however, were requested to submit a second application before their temporary residence expires to obtain settled status and continue living in the UK. Failing to re-apply on time would turn them into unlawful residents, with the risk of losing all rights, including the ability to work, receive healthcare, education and social benefits.
More than 2 million at risk
More than 2 million of the 6 million EU citizens who have applied to remain in the UK post-Brexit have pre-settled status.
The Migration Observatory at the University of Oxford has warned that “a system with two different status outcomes instead of one inevitably increases the complexity of the scheme and the risk that some people fail to understand the differences between the two statuses, including the need to reapply if they hold pre-settled status”.
Pre-settled status holders can also lose their path to settlement if they spend more than 6 months abroad every 12-month period (with some exceptions).
In December 2021, the Independent Monitoring Authority (IMA), the body tasked to oversee the implementation of the Brexit agreement, launched a legal challenge against the Home Office regarding these rules.
On 21 December 2022, the High Court decided that the Home Office was acting unlawfully because residence rights can only be lost in specific circumstances which are clearly defined in the withdrawal agreement. These include extended absences, fraudulent applications or criminal conduct, but not failing to re-apply after having secured pre-settled status.
In the judgment, Lord Justice Lane argued that under the withdrawal agreement people with pre-settled status should not be denied permanent residence, nor lose any residence rights, if they do not make a second application to the EU settlement scheme.
The judge also said that pre-settled status holders are entitled to reside permanently in the UK once they have lived in the country for the required 5 years.
Family members who intend to join EU citizens in the UK also have to apply to the scheme, if they fulfil the criteria set in the withdrawal agreement, so the judgement concerns them too.
‘Huge win’ for EU citizens
EU citizens’ rights group the3million “strongly welcomed” the court’s decision. “We are pleased that the judge agrees with the3million that the point of the EU settlement scheme is to create a clear distinction between those who are beneficiaries of the withdrawal agreement and those who are not. Once a beneficiary, people cannot lose their rights just by forgetting to make a second UK immigration application. The withdrawal agreement does not allow it,” said Monique Hawkins, Policy and Research Officer at the3million.
Dr Kathryn Chamberlain, IMA Chief Executive, commented: “When we brought this judicial review, our intention was to provide clarity for citizens with pre-settled status, of which there were over 2.4 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.”
On the basis of the judgement, “the UK should have another look at the EU settlement scheme and come back with something a bit different, so that EU citizens not yet eligible for permanent residence don’t have to make a second application,” IMA General Counsel Rhys Davies told Europe Street.
He added the win is only a “first step” in the legal procedure. The Home Office has announced it will appeal the decision. However, in February 2023 the Home Office said it will not appeal against the rule.
While the process continues, the IMA urged pre-settled status holders to continue applying for settled status to secure their legal position in the UK.
Regardless of the legal dispute, settled status holders have more rights: they can leave the country for up to 5 years without losing their residence rights, can live in the UK free from any condition (such as being a worker, student or self-sufficient person), can access social benefits and can apply for citizenship, all of which is not possible with pre-settled status only.
In July 2023, following the ruling, the Home Office announced an automatic extension of two years for pre-settled status holders.
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