High Court rules the Home Office’s interpretation of the Withdrawal Agreement is unlawful

Breaking news from the3million: A huge win for citizens’ rights!

Today the High Court ruled that the Home Office’s interpretation of the Withdrawal Agreement is unlawful.

The judge ruled that the EU Settlement Scheme is unlawful in two far-reaching ways:

• people with pre-settled status must not lose any residence rights they have under the Withdrawal Agreement just because they do not make a second application to the EU Settlement Scheme before the expiry of their pre-settled status; and
   
• people with pre-settled status should not be denied permanent residence rights under the Withdrawal Agreement once they have reached the necessary period of 5 years’ lawful residence just because they do not make a second application under the scheme.

This is an extremely important ruling with far-reaching implications. 

The current EU Settlement Scheme requires EU citizens to apply to the scheme to continue living lawfully in the UK. Individuals granted pre-settled status (limited leave to remain for 5 years) under the Scheme are required to make a second application to extend their leave before the expiry of their pre-settled status. If such individuals fail to make a second application, they will lose their residence rights on the date their pre-settled status expires. Those individuals will then become unlawfully resident in the UK and will be exposed to the full impact of the hostile environment.

These individuals will therefore risk losing the right to work, the right to rent, access to free NHS healthcare, the right to benefits and the right to re-enter the UK if they go on a trip abroad.

Often it is the most vulnerable among us who may forget to make another application, or who may struggle to complete an application or obtain the necessary evidence to satisfy the Home Office.

Others with pre-settled status will have been here for five years already, and should be able to access rights that come with having permanent residence, but are being denied these rights because they don’t have settled status. This can be because they did not realise they could, or needed to, make this second application, or because they have made a second application and have been waiting for a long time for a decision.

The case

The Independent Monitoring Authority (IMA) brought a judicial review challenge against the Home Secretary arguing that the loss of rights due to not making a second application in the EU Settlement Scheme was unlawful and not allowed under the Withdrawal Agreement. The IMA’s case was supported by the European Commission and the3million as interveners. The challenge was heard in the High Court on 1st and 2nd November 2022 and judgment was delivered today. You can read the full judgment here.

the3million first raised the core arguments in this case with the newly set up IMA almost two years ago in our first IMA report submitted in February 2021. 

In that report, we clearly stated it was a breach of the Withdrawal Agreement for people with pre-settled status to automatically lose their residence rights for failing to submit a second application to the EU Settlement Scheme.

The judgment rules on two issues.

• Firstly, it makes clear that people with pre-settled status, who continue to live lawfully in the UK, cannot lose their residence rights except for reasons that are clearly set out in the Withdrawal Agreement (for example by being absent from the UK for too long).
  
  It confirms that the Withdrawal Agreement does not allow for the Home Office to require a second application to the Scheme for rights to continue. It is therefore unlawful for individuals to lose their rights just because they do not make a second application to the Scheme 
   
• Secondly, individuals granted pre-settled status should automatically be able to access the rights of settled status as soon as they reach five years of qualifying residence - even if they have not yet applied for, or been granted, settled status.

This judgment safeguards the rights of vulnerable individuals who would be unable or unlikely to make a second application to the Scheme. We are very pleased the judge granted the3million permission to intervene in this extremely important case and that the judgment relies on the3million’s written submissions at various points.

The judge agreed 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 Withdrawal Agreement beneficiary, people cannot lose their rights just by forgetting to make a second UK immigration application - the Withdrawal Agreement does not allow it.

We are very grateful to ILPA’s Strategic Legal Fund, for funding this intervention, and to our lawyers at Public Law Project and Landmark Chambers in this case.

The Home Office has applied for permission to appeal. We will keep you updated on any developments.