On 21 December 2022, a landmark decision was made in the case Independent Monitoring Authority for the Citizen’s Rights Agreements v Secretary of State for the Home Department (‘IMA v SOS HD’) which concluded that the Home Office’s interpretation of the Withdrawal Agreement was unlawful and failed to sufficiently protect EU citizens’ rights.
In February 2023, the Secretary of State confirmed that the Government would not appeal against the decision made in IMA v SOS HD and was left with an obligation to ensure that the UK’s policies conformed correctly to the Withdrawal Agreement. For months, this sparked much debate and opinion about what the Home Office would do practically to ensure that EU citizens’ rights were protected.
On 17 July 2023, the government published a new Statement of Changes to the immigration rules with notable amendments affecting the EU Settlement Scheme (Appendix EUSS). There will be further discussion as to whether these changes go far enough and whether they are as generous as most expected.
Background to Pre-Settled Status and right to Permanent Residence
Appendix EUSS previously provided that EU citizens and their family members with less than five continuous years residence in the UK would be eligible to apply for Pre-Settled status and those who had five or more years of continuous residence in the UK would be eligible to apply for Settled status. This meant that all EU nationals and their family members residing in the UK were required to take action under the scheme.
Those who were not yet eligible to apply for Settled status were able to apply for Pre-Settled status. Once granted, they were given the chance to accumulate the five years residence required to apply for Settled status in the UK. Those with Pre-Settled status who failed to make an “in time” application or qualify for Settled status, lost their right to remain lawfully in the UK.
In retrospect, these provisions seemed generous as a vast majority of EU Nationals and their family members would have been eligible to apply for Settled status. However, for Pre-settled status holders, it was becoming more apparent that these provisions were not so generous and were in fact unduly harsh. With the introduction of COVID-19 into the world, imposed travel restrictions and a huge wave of Pre-Settled status applications submitted just before the Brexit official date (with some people arriving in the UK one day before), many such holders found that they would not be eligible for Settled status after five years. This meant that their UK immigration positions would be harshly prejudiced.
Independent Monitoring Authority for the Citizen’s Rights Agreements v Secretary of State for the Home Department
This situation sparked much debate and led to the Independent Monitoring Authority, whose role is to monitor the rights of EU, EEA and EFTA citizens post Brexit, to bring a court case, arguing that 2.6 million EU citizens with Pre-Settled status were at risk of losing their right to live and work in the UK due to what they claimed was an ‘unlawful interpretation’ of the Withdrawal Agreement by the Home Office. On 21 December 2022, the High Court found that a right of residence can only be lost in the precise circumstances defined in the Withdrawal Agreement under section 15(3). A loss of rights for failure to upgrade from Pre-Settled to Settled status did not fall under one of those circumstances.
Unlawful Limitation on Leave
As a result of IMI v SOS HD, Mr Justice Lane, stated that the EU Settlement Scheme in its current form was operating in an unlawful manner and that the Home Office’s limitation imposed to Pre-Settled status holders contravened Article 13 of the Withdrawal Agreement, which provided that:
‘The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.’
Furthermore, Justice Lane considered Article 18 of the Withdrawal Agreement, whereby the beneficiaries should or should not make a fresh application to obtain settled status. He stated that: ‘the WA means that the rights conferred by the grant of new residence status under Article 18 to those who do not, at that point, have a right of permanent residence, includes the right to reside permanently in the United Kingdom, pursuant to Article 15, once the five-year period has been satisfied (subject to the conditions mentioned in Article 15(1)). I reach this conclusion by reference to Article 31 of the Vienna Convention. I do not do so by importing any free-standing principles of EU free movement law because, so far as this country is concerned, there are no such free-standing principles. I confirm that there is no need for a reference to the the Court of Justice of the European Union (CJEU). The matter is acte clair.’
Justice Lane’s position was that, overall, the current EU Settlement Scheme operates unlawfully and does not protect the rights of beneficiaries of the scheme.
“New” EU Settlement Scheme
On 17 July 2023, the Government published a new Statement of Changes to the immigration rules with notable changes affecting the EU Settlement Scheme and are arguably less generous than most expected.
The Home Office’s position regarding Pre-Settled status is that it will automatically add two years to the validity of an individual’s existing status, thus offering additional time to accumulate the required five years of continuous residence in the UK needed for Settled status. Applicants will be notified of this change via their online accounts and are not required to make any new applications or additional requests to the Home Office.
Although this extension is welcomed, it is by far not as unlimited as many had hoped and not as “protective” of EU citizens’ lawful residence in the UK. Therefore, the pressure still remains on applicants to accumulate the continuous five-year residency in the UK before being granted Settled status.
Furthermore, the Home Office confirmed that they intend to put a process in place to automatically convert Pre-Settled status to Settled status for eligible applicants, in line with safeguards, to refrain from issuing settlement status to those who are not entitled. However, this process has not yet been finalised, and further communication is expected on how the Home Office will efficiently and correctly undertake this conversion.
Conclusion
The bottom line, at least for now, is that Pre-Settled remains a temporary status, and just adds a further two-year extension. This gives those affected by their absences from the UK, “additional time” only to make up the continuous five-year residency in the UK required for Settled status. It is without a doubt that a large number of EU citizens will be impacted and will be unable to apply for Settled status, even with this additional extension to Pre-Settled hence there may be another court case on the “generosity” and “lawfulness” of this change to EU Settlement Scheme.
For further information, please contact:
Ana Nicorici, Withersworldwide
ana.nicorici@withersworldwide.com
