UK Court says EU settled status rules need to change

Parts of the EU settlement scheme, the post-Brexit residence system for EU citizens in the UK, are unlawful and need to change, the 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 UK Court said these provisions are not in line with the EU-UK withdrawal agreement, the international treaty governing the UK exit from the European Union. But pre-settled status holders are invited to continue applying for full settlement. Here is why.

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.

Under the agreement, EU citizens would gain permanent residence (or ‘indefinite leave to remain’) if they had lived for 5 continuous years in the UK. Those with less than that would be granted a temporary legal status and the right to complete the 5-year period.

The UK government designed the EU settlement scheme to enact these provisions. EU citizens had to apply for the new legal status. They would be granted ‘settled status’ if they fulfilled the 5-year requirement and ‘pre-settled status’ if they had been in the UK for less than 5 years.

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 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).

Legal challenge

In December 2021, the Independent Monitoring Authority (IMA), the body tasked to oversee the implementation of the Brexit deal, launched a legal challenge against the Home Office regarding these provisions.

On 21 December 2022, the High Court ruled 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 for residence 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 there 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

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.”

Home Office to appeal

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.

But he added the win is only a “first step” in the legal procedure. The Home Office has announced it will appeal the decision.

While the process continues, the IMA urges pre-settled status holders to continue applying for settled status to secure their position in the UK.

Regardless of the legal dispute, settled status holders benefit of 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.

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