Home Office dragged to High Court by Brexit deal watchdog over ‘unlawful’ treatment of EU citizens

Judge says case ‘plainly arguable’ and resolution of issues is matter of public interest

The Home Office is being taken to court by a government-sponsored Brexit watchdog over the “unlawful” treatment of 2.5 million EU citizens in the UK.

The High Court has confirmed that the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA), designed to protect the rights of EU nationals in the UK, has been granted permission to proceed with a judicial review claim against the department.

The IMA considers that the Home Office’s position that citizens who fail to apply for settled status before the expiry of their pre-settled status automatically lose their rights is unlawful.

In his decision to grant permission, High Court judge Mr Justice Saini said the case was “plainly arguable” and that resolution of the issues was a matter of public interest given the “potentially large” numbers of those with pre-settled status.

Under the EU settlement scheme, which EU citizens were required to apply for in order to obtain post-Brexit immigration status, applicants who have lived in Britain for less than five years are granted pre-settled status, which expires after five years.

The total number of individuals granted pre-settled status up to 31 May 2021 is estimated to be 2.6 million.

Before their pre-settled status expires, they are required to apply for settled status or reapply for pre-settled status. If they do not apply in time, they will automatically lose rights to work, access housing, education and claim benefits and could be liable for deportation.

In documents submitted to the High Court last year, the watchdog said: “If [pre-settled status holders) fail to apply for either status, the secretary of state will consider them to be unlawfully present in the UK.

“The result is that they will be exposed to considerable serious consequences affecting their right to live, work and access social security support in the UK.”

The IMA raised these concerns with the Home Office and issued them with a pre-action protocol letter on 15 October 2021. The Home Office said it did not agree with this interpretation and the IMA has therefore launched legal action.

An IMA spokesperson said: “We welcome the decision of the court to allow our case to be heard. This is an important milestone as we hope to provide clarity and certainty for the millions of citizens with pre-settled status.

“In the meantime, we continue to encourage citizens experiencing difficulties in exercising their rights to make us aware of this via our online portal.”

“The claim should be resolved well-before any such individual is exposed to potential risks of a failure to apply for settled status,” he added.

The hearing is expected to be heard before the end of the year. A date will be fixed by 4 July.

A Home Office spokesperson said: “We take our citizens’ rights obligations very seriously and, in good faith, we have put in place the arrangements agreed under the Withdrawal Agreement. As this is ongoing litigation, it would be inappropriate to comment further.”