Home Office rules affecting 2.6 million EU citizens living in the UK ‘unlawful’ – High Court

Home Office rules affecting millions of EU citizens living in the UK under a scheme designed to settle their immigration status after Brexit are unlawful, a High Court judge has ruled.

In a judgment on Wednesday, Mr Justice Lane concluded that part of the European Union Settlement Scheme (EUSS) set up by the Home Office is based on an incorrect interpretation of the withdrawal agreement between the UK and EU.

The Home Office says it intends to appeal against the ruling.

The judge gave his ruling following a challenge by the Independent Monitoring Authority (IMA) – the watchdog set up by the Government to look after EU citizens’ rights in Britain after its exit from the union.

At a hearing in London in November, lawyers for the IMA told the court the scheme was “incompatible” with the withdrawal agreement negotiated between the UK and EU in relation to its effect on some EU citizens and their family members, as well as those from countries in the European Economic Area (EEA) and the European Free Trade Association (EFTA).

Robert Palmer KC told the court that millions of EU citizens living in the UK risked losing their rights and being treated as “illegal overstayers” as a result.

The barrister said the affected cohort is about 2.6 million people who were living in the UK before the end of the transition period in 2020 and were granted “pre-settled status” – a limited form of leave to remain in the UK – after applying under the EUSS.

Under the Home Office’s rules, those people will lose their right to lawfully live in the UK unless they make a further application within five years.

Mr Palmer said the result of the loss of their rights is that they would be “exposed to considerable serious consequences affecting their right to live, work and access social security support and housing in the UK, and will be liable to detention and removal”.

He told the court: “If a person with such status does not make a further application for settled status or pre-settled status, the effect of the scheme is that that person will automatically lose their right to residence in the UK, making them an illegal overstayer who is liable to detention and removal.”

He said those people would lose all rights of residence including the right to work, to rent a home and to access healthcare.

In his ruling, Mr Justice Lane said that, if the Home Office’s interpretation of the law was correct, “a very large number of people face the most serious uncertainty”.

He added: “If they lose legal status in the United Kingdom, their continued physical presence here will depend on the view taken by the defendant on whether to enforce immigration control by insisting on the individual’s removal.

“Someone who makes a belated application for further leave will not know whether the defendant will accept the late application.”

He concluded the Home Office had wrongly interpreted the law on both issues challenged by the IMA – whose case was supported by the European Commission and the3million, a grassroots organisation representing EU citizens in the UK.

In a statement after the ruling, IMA chief executive Dr Kathryn Chamberlain said: “I am pleased that the judge has recognised the significant impact this issue could have had on the lives and livelihoods of citizens with pre-settled status in the UK.

“When we brought this judicial review, our intention was to provide clarity for citizens with pre-settled status… this judgment that the current system is unlawful provides that clarity. We will now liaise with the Home Office on the next steps.”

Rhys Davies, IMA general counsel, said: “The withdrawal and separation agreements say that people can only lose their rights in a limited set of circumstances and failing to upgrade from pre-settled to settled status is not one of them.

“We brought this case as we wanted to avoid the risk that citizens with pre-settled status who fail to make a second application to the EUSS after the expiry of their pre-settled status following five years of residence in the UK, lose their rights.

“The earliest point this could happen is in August 2023, marking five years from the earliest grants of pre-settled status.”

Monique Hawkins, policy and research officer at the3million, said: “We strongly welcome this judgment which stands to protect vulnerable citizens who are granted pre-settled status under the EUSS, and who could lose their right to work, rent, travel, benefits, healthcare and more – just for not making a further application in the years ahead.

“We are pleased that the judge agrees with the3million that the point of the EUSS 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.”

Home Office Minister Lord Murray said: “EU citizens are our friends and neighbours, and we take our obligations to securing their rights in the UK very seriously.

“The EU Settlement Scheme goes above and beyond our obligations under the withdrawal agreement, protecting EU citizens’ rights and giving them a route to settlement in the UK.

“We are disappointed by this judgment, which we intend to appeal.”

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