On 21st December 2022, in the case of Independent Monitoring Authority v Secretary of State for the Home Department  EWHC 3274 (Admin), the High Court ruled that the EU Settlement Scheme (EUSS) is unlawful. In this article, we will look at the background of the High Court case and the Home Office’s decision not to bring an appeal.
High Court Finds EUSS Breaches The Withdrawal Agreement
In 2022, the Independent Monitoring Authority (IMA) brought a case against the UK Secretary of State challenging the Home Office’s assertion that EU nationals living in the UK with pre-settled status should have to make a second application under the EUSS before the expiry date of their current pre-settled status to avoid losing their residence rights. The IMA is a watchdog that was originally established to investigate breaches of the rights of EU citizens following Brexit,
The IMA’s case rested on the argument that EU citizens with pre-settled status should not lose their rights if they do not submit a new application in time. They also argued that those with pre-settled status, according to the Withdrawal Agreement, should automatically acquire UK permanent settlement. The court agreed that it was unlawful for individuals to lose their residence rights if they did not apply for full EUSS settled status or reapply for pre-settled status in time.
The case heard in the Upper Tribunal highlighted the legal risk faced by pre-settled status holders who remain in the UK beyond the permitted date without making a new application;
“As the claimant points out, the consequence under the [Immigration] 1971 Act of limited leave coming to an end, without being followed by further leave, is extremely serious. The person concerned becomes an overstayer who, from that point, is in the United Kingdom unlawfully. A person who knowingly remains beyond the time limited by the leave commits a criminal offence: section 24 of the 1971 Act. There is no legal ability to work or claim certain benefits”.
As a result of how the Home Office has been interpreting the law, Mr Justice Lane confirmed that “a very large number of people face the most serious uncertainty” and that the EUSS is unlawful.
It was widely expected that the Home Office would appeal the High Court’s decision.
Home Office Confirms It Will Not Appeal
On 15th February 2023, the Secretary of State confirmed that it would not seek to appeal the High Court’s decision that requiring EU nationals citizens to reapply in order to remain here is unlawful; “After careful consideration, we have informed the court that we do not wish to pursue the appeal against the recent judgment relating to the EU Settlement Scheme”.
Responding to the announcement, the 3 million groups tweeted, “We welcome this uncommon decision by the Home Office not to pursue an appeal. The judgement has averted a ticking time bomb. EU citizens navigating the complexities of securing settled status have been dealing with uncertainty long enough”.
What Does The Home Office’s Decision Not To Appeal Mean For EU Nationals With Pre-settled Status?
The Home Office is now working on plans to ensure that the residency rights of those with pre-settled status under the EUSS are protected even if they do not apply for settled status or reapply for pre-settled status in time. In the meantime, those with pre-settled status are advised to apply for settled status as soon as they are able to.
The Home Office stated that the High Court’s judgement is now law, and they are working on its implementation “as swiftly as possible”. As soon as we know more about how the Home Office will apply the ruling of the High Court, we will let you know.
Garth Coates is a leading niche immigration firm based in the heart of London, specialising in all forms of personal and business immigration, including visas, global mobility, sponsorship and compliance, settlement, and citizenship. To discuss how best to challenge a visa refusal based on your circumstances, please contact one of our friendly and approachable immigration Solicitors on Tel: +44 (0)20 7799 1600 or by completing our online contact form.