High Court finds the UK’s EU Settlement Scheme to be unlawful

Following the ruling laid down on 21^st December 2022 in R (on the application of Independent Monitoring Authority for the Citizens’ Rights Agreement) v Secretary of State for the Home Department (European Commission and another intervening) [2022] EWHC 3274 (Admin), [2022] All ER (D) 70 (Dec) (21 December 2022) the UK’s EU Settlement Scheme (“EUSS”) was found to be unlawful. The EUSS, which was set up by the UK Government to protect the residence rights of EU nationals living and residing in the UK prior to 31^st December 2020, was found to have breached the Withdrawal Agreement between the UK and the EU. It was found the scheme fails to properly protect the rights of EU citizens.

Background to the claim

The Independent Monitoring Authority (“IMA”), an independent non-departmental public body funded by the Government to oversee EU and EEA EFTA citizens’ rights, issued a judicial review claim against the Home Office arguing the UK Government was breaching the Withdrawal Agreement negotiated with the European Union by requiring EU citizens to reapply for Settled Status before the end of their Pre-Settled Status. The argument made by the IMA was that the UK Government was in breach of the Withdrawal Agreement as the intention was not for EU citizens to have to “upgrade” their status in order to remain legally in the UK.

Considering the judicial review claim, Mr Justice Lane ruled that:

• EU nationals and their dependants will not lose their residency rights if they do not “upgrade” their status from Pre-Settled Status to Settled Status.
• The scheme breaches the Withdrawal Agreement because it fails to properly protect the rights of EU citizens.

Significance of decision

Following the UK’s withdrawal from the EU on 1^st January 2021, individuals with Pre-Settled Status were required to make an application for Settled Status before their leave expired. Failure to do so would result in the individual losing their right to remain in the UK and thus becoming an overstayer – severely impacting their ability to live, work and access services in the UK. This therefore placed an onus on individuals to ensure they track their visa expiry date and “upgrade” to Settled Status once they are able to prove 5 years continuous residence in the UK.

We understand the judgment is being appealed by the Government’s lawyers and therefore this is not the final outcome. However, should the Government fail in its appeal, we are likely to see a significant amendment to the EU Settlement Scheme whereby certain individuals are not required to “upgrade” their status prior to the expiry of their Pre-Settled Status.

Impact on employers and individuals

As mentioned above, the UK Government has appealed the decision and therefore individuals should continue to apply for Settled Status where they have completed a continuous period of 5 years residence in the UK. Individuals do not need to wait until the end of their Pre-Settled Status leave and should make an application as soon as they have completed 5 years residence since arriving in the UK (assuming they meet the absences requirement).

The first individuals to apply under the scheme was from 28^th August 2018 and therefore those who were the first to apply to the scheme and issued with Pre-Settled Status will have a visa expiry date from 28^th August 2023 onwards.

Employers should also, for the time being, continue to monitor the visa expiry date of employees with Pre-Settled Status and reach out to individuals ahead of the visa expiry date.

What next?

We will continue to keep our clients and contacts updated with the outcome of the UK Government’s appeal, which if rejected, would have huge consequences for those EU citizens with Pre-Settled Status in the UK.

If you have been impacted by this decision and require legal advice, please reach out to our Head of Immigration, Sundeep Rathod.

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