The Secretary of State will not appeal judgment which found the Brexit rule that makes EU citizens reapply to stay in the UK is unlawful

the3million understands the government is not pursuing a further appeal to the High Court decision which found the Home Office’s interpretation of the Withdrawal Agreement is unlawful. The government must now propose and implement changes required, in order to conform with the judgment. 

The High Court found the EU Settlement Scheme rule, which puts 2.2m people with pre-settled status at risk of losing their residency rights, to be unlawful. The judge ruled that:

• people with pre-settled status must not lose residence rights 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 once they have reached the necessary period of 5 years’ lawful residence just because they do not make a second application under the scheme.

The current EU Settlement Scheme grants pre-settled status to EU citizens who have lived in the UK for less than five years. People are required to make a second application to gain settled status, indefinite leave to remain. Pre-settled status is only valid for five years after it is granted. If people fail to make a second application before their pre-settled status expires, they become unlawfully resident in the UK and are exposed to the full impact of the hostile environment. 

the3million, the largest group representing EU citizens in the UK, first raised the issue in February 2021 to the newly set up Independent Monitoring Authority. Our report to the IMA clearly explained that we felt the loss of rights for not making further applications to the EU Settlement Scheme was a breach of the Withdrawal Agreement. 

The IMA brought legal action against the Home Office over the rights of vulnerable people, and the3million and the European Commission intervened in the case.

Monique Hawkins, Co-CEO of the3million, said:

“We welcome this uncommon decision by the Home Office not to pursue an appeal. The judgment has averted a ticking time bomb. EU citizens navigating the complexities of securing settled status have been dealing with uncertainty long enough. 

“It is now vital that the Secretary of State urgently develops plans to secure the residency rights of EU citizens and we stand ready and willing to work with them to achieve this. It’s time for the Home Office to redeem itself and listen to organisations representing EU citizens who have been sounding the alarm. 

“The implementation of this judgment needs to ensure citizens do not lose their residency rights unlawfully, just because they fail to make a second application. We encourage the government to take a pragmatic approach, to safeguard the rights of vulnerable people who would be unable or unlikely to make a second application, such as children and elderly in care, and victims of domestic abuse.” 

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 for representing us in this case.

While we wait for changes to be made, we encourage people with pre-settled status who are eligible for settled status to continue to apply to the EU Settlement Scheme, to secure indefinite leave to remain in the UK.

You can find information about the consequences of the judgment in our FAQs.