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Was the EU settlement scheme thought through?

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A recent High Court judicial review ruling might prove that the EU Settlement Scheme (EUSS) was not only not thought through but also unlawful. The case of R (Independent Monitoring Authority for the citizens’ Rights Agreements) v Secretary of State for the Home Department [2022] EWHC 3274 (Admin) confirmed that the EUSS is at odds with the EU-UK Withdrawal Agreement. The decision has far-reaching implications as it may impact the rights of 2.7 million individuals who hold pre-settled status in the UK. Here we discuss the important aspects of the case and what it could mean to your status. 

The impact of Brexit has been far reaching and untangling years of intertwined governance was done very quickly. Many commentators stated that it would take up to ten years to transition. The withdrawal has resulted in several changes for EU citizens living in the UK and those UK citizens in the EU. One of the principal concerns during the negotiations was to protect their rights. 

What is the EU Settlement Scheme?

The EUSS was introduced by the British government to provide legal protection for EU citizens residing in the UK and for British citizens residing in EU member states, because of the restrictions on freedom of movement following Brexit. 

It is a crucial aspect of the Withdrawal Agreement and was created with the intention of safeguarding the rights of millions of EU citizens who were residing in the UK before the conclusion of the Brexit transition period on December 31st, 2020. 

Under the EUSS, EU citizens residing in the UK are required to apply for a new status based on their length of continuous residency in the UK. EU citizens who have lived in the UK for five or more years are granted “settled status”, which is equivalent to indefinite leave to remain. Conversely, EU citizens who have lived in the UK for less than five years are granted “pre-settled status”, which is a temporary status for a period of five years. After five years, they can apply for an upgrade to settled status. 

The difference between the requirements of the EUSS and the Withdrawal Agreement is that the former is based on physical presence whereas the latter protects those exercising their rights of residence. Therefore, without the EUSS many EU citizens that were not working, studying or self-sufficient would have not been protected. So, in that respect more thought was provided to protect EU citizens rights but the logistics might not have been. 

The Home Office has issued pre-settled status to approximately 2.7 million people. 

Why could the EUSS be unlawful?

The recent judicial review proceedings concerned two main parties: 

  • the Independent Monitoring Authority (IMA) and; 
  • the Home Office.  

The IMA is an independent, publicly-funded body established to safeguard the rights of EU citizens in the UK following Brexit. The court considered two distinct questions in these proceedings. 

The initial questions concerned those that have applied and failed to upgrade their status to settled status before the expiration of their pre-settled status. 

The Home Office want to consider these individuals in the same light as any other migrant and therefore are no longer protected by the Withdrawal Agreement. Overstaying is a criminal offence under section 24 of the Immigration Act 1971. If a visa has expired and new application is made late, then that individual is no longer permitted to work. Further, could affect ability to rent a home or open a bank account. 

However, the IMA took an alternative view that these people could not be considered overstayers and that they did not lose the rights they have under the Withdrawal Agreement. 

The court ultimately sided with the IMA, which is positive news for individuals holding pre-settled status. They will retain the rights afforded to them in the Withdrawal Agreement even after the five years. Protecting any of those 2.7 million EU citizens from criminal proceedings should they miss the deadline for upgrading. 

The second question that the court considered involved the acquisition of permanent residence. 

The procedures for settled status in the EU and UK differ as there is no need to apply for settled status after five years in the EU, it is presumed. Whereas, the UK has no presumption and needs an individual to apply for settled status. 

The difference although subtle should have been thought of when defining the EUSS. The IMA argued that the Withdrawal Agreement protects those EU citizens from having to make a second application after five years. 

The court once again agreed with the IMA, reinforcing the IMA’s stance on the matter. 

Clearly, the EUSS implications and implementation were not thought through. 

What does this mean for the EUSS and applications for settled status?

The Home Office intends to appeal the decision and therefore we really need to wait until that judgement. 

If upheld there are several possible outcomes. The Home Office could just update all EU Citizens that applied for pre-settled status to settled after five years. Although maybe that could be slightly hopeful but also could cause issues distinguishing between those protected by the Withdrawal Agreement and those who are not. 

The Home Office could use other means to make it difficult for these individuals. They could require a different application to apply for right to work codes every five years until they naturalise. 

We are hopeful that our EU citizen clients are not left in the dark and that any Home Office challenge to the ruling does not leave them a short amount of time to apply for any upgrade to status or any other new application. 

How Oracle Solicitors can help you?

If you are an EU citizen residing in the UK or a UK citizen residing in the EU, you may have concerns regarding your rights and status as a result of the recent changes brought about by Brexit. It is crucial that you seek legal advice to ensure that you are protected and have a clear understanding of your rights and obligations. 

At Oracle Solicitors, our team of experienced lawyers is dedicated to helping individuals and businesses navigate the complex legal landscape of Brexit. Whether you are seeking guidance on immigration and residency rights, or require assistance in securing your rights to work, travel and access to public services, we have the knowledge and expertise to help you. 

Don’t let Brexit uncertainty impact your life and well-being. Contact Oracle Solicitors today at [email protected] or 02030515060 to schedule a consultation with one of our experienced lawyers.  

Our team is available to answer any questions you may have and provide you with the guidance and support you need. We are here to help, so don’t hesitate to reach out to us. 

Benjamin-Lockyer

Ben is the business development manager for the firm. He has years of experience building relationships with commercial partners.

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