Home Office accepts Brexit EU citizens registration scheme is unlawful

The High Court ruled against the ‘pre-settled status’ element in December

The Home Office has accepted that a key part of its Brexit scheme to let EU citizens remain in the UK is unlawful and needs to be redesigned.

The department said late on Wednesday that after “careful consideration” it would not be appealing a court ruling on so-called “pre-settled status”.

The High Court in December said the system was “wrong in law and that the EU Settlement Scheme [EUSS] is accordingly unlawful” after accepting a legal challenge.

Under the EU Settlement Scheme, European nationals living in the UK have to apply for the right remain in the country and obtain “settled status”.

But those who had been in the UK for less than five years were only given a less temporary “pre-settled status” and told to re-apply later, or risk losing their residence rights.

It was this latter part of the scheme that the High Court ruled as unlawful because it “purports to abrogate the right of permanent residence”.

Losing these rights would cut off a person’s ability to get housing and healthcare, to work, and to claim social security benefits.

The ruling was prompted by a legal challenge launched by the Independent Monitoring Authority (IMA), a watchdog set up by the Brexit deal to oversee the agreement’s implementation.

Dr Kathryn Chamberlain, chief executive of the IMA, said the body was “pleased that the Home Office has taken the decision not to proceed with the appeal” and said she hoped the department would provide clarity on how it would proceed.

“We have already begun discussing with the Home Office how the IMA will be engaged as part of the Home Office’s work to make the necessary changes to the EUSS,” she added.

“We hope that being part of that process will ensure the IMA can monitor those changes as they are developed, and also ensure that they are sufficiently promoted amongst citizens.”

In the meantime, the IMA is encouraging citizens with pre-settled status to apply for settled status under the scheme as soon as they are eligible for it, until a new system is in place.

The Home Office had initially said it would appeal the High Court judgment, but changed course this week, in an unexpected move welcomed by citizens’ rights campaigners.

“We welcome this uncommon decision by the Home Office not to pursue an appeal,” said Monique Hawkins, co-chief executive of campaign group the3million, which represents EU nationals living in Britain.

“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.”

Ms Hawkins said it was important that the implementation of the judgment ensured that citizens would not lose their residency rights unlawfully “just because they fail to make a second application”.

A Home Office spokesperson said: “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. We are working to implement the judgment as swiftly as possible and will provide an update in due course.

“Those with pre-settled status are encouraged to apply for settled status as soon as they are eligible, so they can obtain secure evidence of their right of permanent residence in the UK.”