High Court rules that the EU Settlement Scheme is operating unlawfully – why?

By Jessie Yang

 

On 21st December 2022, the High Court delivered a judgment for a judicial review case relating to the EU Settlement Scheme which came about as a result of Britain’s exit from the EU in 2016.

 

This case was brought by the Independent Monitoring Authority (a statutory body set up to protect EU citizens’ rights in the UK) against the Home Office relating to the requirement in the EU Settlement Scheme (EUSS) for those with pre-settled status to apply for settled status after five years. It has some significant implications for those EEA nationals with pre-settled status.

 

The case was titled as follows: (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.

 

Keep reading to learn more.

 

Background

 

The EU Settlement Scheme introduced by the Home Office in 2018. It requires EU citizens to submit an application under the scheme to continue to live in the United Kingdom lawfully.

 

According to the scheme, EEA Nationals who were residing in the UK before 31st December 2020 were required to apply to the Home Office in order to remain in the UK in reliance on their former rights. Those EEA nationals who had lived in the UK for five continuous years were granted Settled Status. However, EEA nationals who were not eligible to qualify for Settled Status under the scheme were granted pre-settled status (limited leave to remain for 5 years). In this case, they were required to make a second application to extend their leave before the expiry of their pre-settled status. If they did not do so, they would lose their residence rights and become unlawful residents in the UK as a consequence.

 

The Decision of the Court

 

The judicial review claim was considered by Mr. Justice Lane. His Lordship ruled that a right of residence can only be lost in very specific circumstances which are clearly defined in the EU Withdrawal Agreements (2020). Failure to make a second application as ‘required’ under the EU Settlement Scheme does not and could not constitute one of those very specific circumstances.

 

Although the Home Office submitted the claim that the specific requirement to re-apply was ‘merely procedural,’ the High Court rejected this claim and ruled that the consequences of failing to submit a second new application was so severe and significant that they could not be easily disregarded.

 

That being the case, Mr. Justice Lane declared that the EU Settlement Scheme is operating unlawfully. In summary, His Lordship determined two important points:

 

1. Individuals granted pre-settled status should not lose their rights by not making a second application.

 

2. Settled status rights accrue automatically without the need for a second application to upgrade rights. The right of settled status in the UK under Article 15 Withdrawal Act (2020) accrues automatically, once the conditions for obtaining the right have been fulfilled by an individual. It is unlawful for the Home Office to withdraw these rights where an individual fails to make a second application.

 

The Significance of the Ruling and Our Comments

 

The case has two potential consequences for those who made applications under the EU Settlement Scheme, namely, a) those granted pre-settled status could be given the ‘automatic rights’ to reside permanently in the UK once they have met the five year residence threshold without submitting a second application; b) those granted pre-settled status could also be automatically entitled to extend their stay in the UK upon expiry of their limited leave as long as they satisfy the requirements without making a second application should they are not eligible to apply for Settled Status.

 

It should be noted that the Home Office is highly disappointed with the High Court’s ruling and plans to lodge an appeal. The Home Office minister Lord Murray commented that ‘the EU Settlement Scheme goes above and beyond our obligations under the Withdrawal Agreement.’ Given this, it therefore seems highly likely that the issue regarding the lawfulness of the EU Settlement Scheme may be brought and decided before the UK Supreme Court in due course. Accordingly, it should be noted that until the appeals stage is over, and the final judgment is delivered, individuals with pre-settled status should continue to make a second application on expiry of their status in due course.

 

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