UK post-Brexit settlement scheme for EU Nationals ruled unlawful

The EU Settlement Scheme

Under the current EU settlement scheme, any EU Nationals with “pre-settled status” who do not reapply after five years to gain “settled status” automatically lose their right to work, right to live in the country, right to rent property or access the NHS, im-mediately - also being liable to deportation. 

Under the EU-UK Withdrawal Agreement, both parties agreed that respective citizens could remain lawfully in the countries they currently resided, if they had settled in those countries prior to Brexit. Only  two countries however, the UK and Slovenia, cre-ated policies that require citizens to reapply for residency if they had been in the coun-try for less than five years. 

High Court Judgement

The Independent Monitoring Authority (IMA), which is a statutory body created to pro-tect EU citizen’s rights in the UK, brought forward the recent judicial review with the intention of providing clarity around the official EU-UK Withdrawal Agreement and the Home Office’s additional policy stipulations. 

On Wednesday 21st December, a High Court ruling by Lord Justice Lane concluded that EU Nationals who have “pre-settled status” may only lose their right to UK residence under specific circumstances outlined clearly within the EU-UK Withdrawal Agreement, and that this should not include a failure to reapply for and upgrade to “settled sta-tus.” Lord Justice Lane described the current Home Office rule as: 

“wrong in law and that the EU settlement scheme is accordingly unlawful” as it “purports to abrogate the right of permanent residence.” 

The judgement has been welcomed by both the IMA and EU citizen campaign groups such as the3million, stating that it has brought clarity to the 2.7 million citizens with “pre-settled status” in the UK, with the first cohort of statuses set to expire in August 2023.

The campaign group the3million stated: 

“We strongly welcome this judgment, which stands to protect vulnera-ble citizens who are granted pre-settled status under the EU settlement scheme, 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 EU settlement scheme is to create a clear distinc-tion 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.” 

The IMA and campaign groups hope that if the ruling is confirmed, then some of the more vulnerable EU Nationals who have been granted “pre-settled sta-tus” in society such as elderly members of the care system, children or those in refuges without access to their paperwork, would be saved from deportation and retain their rights to access UK services such as the NHS. 

Home Office minister Simon Murray however, has stated that they are disap-pointed in the judgement and they intend to appeal it: 

“EU citizens are our friends and neighbours, and we take our obliga-tions to securing their rights in the U.K. very seriously. The EU Settle-ment Scheme goes above and beyond our obligations under the With-drawal Agreement, protecting EU citizens’ rights and giving them a route to settlement in the U.K.” 

The Advisory Bureau will continue to monitor for updates in relation to this rul-ing and will communicate any consequent changes to the requirements of the EU Settlement Scheme as and when they arise.