Brexit rules for millions of EU citizens living in UK deemed unlawful

High Court says pre-settled status system is not lawful and creates too much uncertainty

Brexit rules requiring millions of EU citizens to re-apply for the right to live in Britain are unlawful, the High Court has ruled.

The Home Office EU settlement scheme opened in March 2019 and required all EU citizens to register for “settled status” if they wanted to stay in the UK.

But under the scheme, EU citizens who had lived in Britain for less than five years were given a lesser “pre-settled status” and told to re-apply later – or risk losing their residence rights.

Those who failed to re-apply after five years of continuous residence would lose the right to work, housing, healthcare and education.

In a judgment issued on Monday, High Court judge Justice Lane said the pre-settled status rule was “wrong in law and that the EU settlement scheme is accordingly unlawful” because it “purports to abrogate the right of permanent residence”.

The ruling was prompted by a legal challenge against the Home Office by the Independent Monitoring Authority (IMA), an official watchdog that was set up by the Brexit withdrawal agreement to safeguard citizens’ rights.

The Home Office said it will appeal the ruling, which is set to affect more than 2.7 million people who currently have pre-settled status. More than 3 million people were issued with permanent settled status.

In his ruling Justice Lane said: “The consequence 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. In my judgment, these consequences cannot be brushed aside as merely procedural matters.”

Dr Kathryn Chamberlain, the head of the Independent Monitoring Authority, said she was “pleased that the judge has recognised the significant impact this issue could have had on the lives and livelihoods of citizens with pre-settled status”.

The IMA says it brought the challenge to give clarity before the first tranche of EU citizens approach their deadline.

Around 200,000 people who were part of the scheme’s original pilot in 2018 must register for full settled status by August next year, or lose their residence rights.

Monique Hawkins, policy and research officer at the3million, a campaign group that represents EU citizens living in Britain, said: “We strongly welcome this judgment which stands to protect vulnerable citizens who are granted pre-settled status under the EUSS, and who could lose their right to work, rent, travel, benefits, healthcare and more – just for not making a further application in the years ahead.

“We are pleased that the judge agrees with the3million that the point of the EUSS is to create a clear distinction between those who are beneficiaries of the withdrawal agreement and those who are not.

“Once a beneficiary, people cannot lose their rights just by forgetting to make a second UK immigration application – the withdrawal agreement does not allow it.”

Alistair Carmichael, the Liberal Democrats’ home affairs spokesperson, said the government should now grant EU citizens in the UK the automatic right to stay.

“This judgement vindicates all those who have been fighting against the Home Office’s use of pre-settled status’, which has left EU citizens who’ve contributed enormously to our country living with uncertainty and anxiety,” he said.

“The Conservatives promised all EU citizens the automatic right to stay, but the scheme they set up was anything but automatic. It’s vital that the government respond to this judgement by finally delivering on what they had previously promised, granting the automatic right to stay to all EU citizens in the UK along with physical proof of settled status.”

Home secretary Suella Braverman is yet to comment on the ruling, but junior Home Office minister Lord Murray said: “EU citizens are our friends and neighbours, and we take our obligations to securing their rights in the UK very seriously.

“The EU Settlement Scheme goes above and beyond our obligations under the withdrawal agreement, protecting EU citizens' rights and giving them a route to settlement in the UK.

“We are disappointed by this judgment, which we intend to appeal.”