Home Office rules that could put millions of EU citizens at risk of job loss or deportation after Brexit have been ruled unlawful by the High Court.
Under the current EU settlement scheme, EU citizens who have been in the country for less than five years before Brexit and who had ‘pre-settled status’ are required to reapply to upgrade their status to ‘settled status’ of establishment’ after being in the country for five years.
If they do not, they would automatically lose their right to reside, work, rent property or access services, including the NHS, under Home Office rules.
But in a judgment handed down in the High Court on Wednesday, Justice Lane described the rule as “wrong in law and that the EU’s settlement scheme is accordingly unlawful” because it “purports to override the right of permanent residence”.
Lane ruled that residency can only be lost in very specific circumstances that are clearly defined in the withdrawal agreement.
Losing rights because someone failed to apply for an upgrade from pre-established status to established status is not one of those circumstances, Lane said.
Under the Brexit Withdrawal Agreement, the UK and the EU have agreed that EU citizens in the UK and UK citizens in the EU can legally remain in the countries they lived in if they settled there before Brexit.
But only the UK and Slovenia require citizens to make a second application to remain if they have been in the country for less than five years, the court was told.
Under Home Office rules, if someone with ‘settled status’ does not apply to upgrade their status to ‘settled status’ after being in the country for five years, they will automatically lose their rights of residence, employment, tenancy or access to services, including the NHS. They were also subject to deportation.
Lane said there was “no reason to doubt” that the Home Office would support vulnerable people with pre-established status, but that the withdrawal agreement “prevents” the Home Office from imposing a further domestic leave requirement as ” condition” for preserving these rights”.
He said: “If the defendant is right, a very large number of people are facing the most serious uncertainty.”
Home Secretary Lord Murray said the government had taken up its “obligations to provide them [EU citizens’] rights in the UK very seriously. The EU settlement scheme goes beyond our obligations under the Withdrawal Agreement by protecting the rights of EU citizens and giving them a pathway to settling in the UK.
“We are disappointed by this decision, which we intend to appeal.
The judicial review of the Home Office’s interpretation of the agreement was undertaken by the Independent Watchdog, a statutory body set up to protect the rights of EU citizens in the UK.
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IMA chief executive Catherine Chamberlain said she was “pleased that the judge has recognized the significant impact the issue can have on the lives and livelihoods of pre-established status nationals in the UK”.
“When we filed this judicial review, our intent was to provide clarity for Pre-Status Citizens, of whom there were over 2.4 million when we filed this case in December 2021. This ruling that the current system is unlawful provides that clarity ,” she added.
Campaign group the3million said: “We strongly welcome this decision which protects vulnerable 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 – only that he will not submit a new application in the coming years.
“We are pleased that the judge agrees with the3million that the purpose of the EU settlement scheme is to create a clear distinction between those who are beneficiaries of the withdrawal agreement and those who are not. Once they become beneficiaries, people cannot lose their rights just by forgetting to make a second application to immigrate to the UK – the withdrawal agreement does not allow that.’
The group that supported the case said such a rule would affect some of society’s most vulnerable, including children and elderly people in care, victims of domestic violence who were undocumented and those who for one reason or another lead chaotic life.
According to Home Office quarterly figures in September, 2.7 million of the 6 million EU nationals granted status to stay in the UK after Brexit had “pre-established status”.
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