Towards the end of December 2022, a court judgment was issued against the UK Government over its approach to the residence and working rights of some EU and EEA citizens living in the UK after Brexit. This blog looks at the background to the judgment and what it means in practice.
EU citizens in the UK
The Withdrawal Agreement outlined the terms of the UK’s withdrawal from the European Union. Part 2 of the Agreement sought to protect the rights of European Union (EU) and European Economic Area (EEA) citizens living in the UK, and British citizens living across the EU, at the time of EU exit. The Withdrawal Agreement safeguarded the rights of EU/EEA citizens in the UK and UK citizens in the EU, allowing them to continue to live and work in the UK or the EU as appropriate.
Settled status and pre-settled status
To implement the terms of the agreement, the UK Government introduced the EU Settlement Scheme. This Scheme allowed EU and EEA nationals living in the UK by 31 December 2020, and who had lived in the UK for a continuous five-year period, to apply for settled status. For EU and EEA nationals who arrived before 31 December 2020 but who had not lived in the UK for a continuous 5-year period, a category of “pre-settled status” could be applied for which could be turned into settled status once a continuous 5-year period has passed.
However, the UK Home Office has taken the position that citizens with pre-settled status must make a second application to the EU Settlement Scheme (to gain settled status) once they have satisfied the continuous 5-year residency requirement, or face losing their rights under Part 2 of the Withdrawal Agreement. These include residence rights, the ability to work in the UK and receive healthcare and education, and apply for benefits if necessary.
According to UK Government figures, at the end of September 2022, just over 3.3 million people had been granted settled status and just under 2.7 million had been granted pre-settled status.
The role of the Independent Monitoring Authority
In the United Kingdom, the Independent Monitoring Authority (IMA) is responsible for ensuring that the terms of the Withdrawal Agreement are properly upheld (The IMA is an independent non-departmental public body and its role is set out a previous SPICe guest blog). In practice this means its role is “to help make sure people from EU and EEA EFTA countries get the same rights as they did before the UK left the EU”.
At the start of November 2022, the IMA sought a judicial review on whether it was “unlawful for citizens to lose their rights if they failed to either apply for settled status, or in some circumstances re-apply for pre-settled status, before the expiry of their pre-settled status.”
The judgment was handed down on 21 December 2022. Lord Justice Lane ruled that the UK Government’s interpretation of the Withdrawal Agreement in requiring those with pre-settled status to apply for settled status was unlawful. According to the IMA:
“Mr Justice Lane ruled that a right of residence can only be lost in very specific circumstances which are clearly defined in the EU Withdrawal and EEA EFTA Separation Agreements.
A loss of rights for failure to upgrade from pre-settled to settled status was not one of those circumstances, and so by imposing a requirement to upgrade residence status the Home Office was acting unlawfully. The judge also said that those granted pre-settled status are entitled to reside permanently in the UK once they have resided there for the required five-year period.”
The campaign group, “the 3 million”, which campaigns on behalf of EU citizens living in the UK set out what they believe the ruling means in practice:
- People with pre-settled status must not lose any residence rights they have under the Withdrawal Agreement just because they do not make a second application to the EU Settlement Scheme before the expiry of their pre-settled status.
- People with pre-settled status should not be denied permanent residence rights under the Withdrawal Agreement once they have reached the necessary period of 5 years’ lawful residence just because they do not make a second application under the scheme.
The UK Government is yet to make any public statements in response to the judgment though the IMA news release suggested they expected the UK Government to appeal the outcome.
This case was one of the first tests of the role of the Independent Monitoring Authority in protecting EU/EEA citizens’ rights. It was also a test of whether the UK Government was correctly implementing the section on citizens’ rights in the Withdrawal Agreement. Following the judgment Rhys Davies, the IMA’s General Counsel said:
“The Withdrawal and Separation Agreements say that people can only lose their rights in a limited set of circumstances and failing to upgrade from pre-settled to settled status is not one of them.
“We brought this case as we wanted to avoid the risk that citizens with pre-settled status who fail to make a second application to the EUSS after the expiry of their pre-settled status following five years of residence in the UK, lose their rights. The earliest point this could happen is in August 2023, marking five years from the earliest grants of pre-settled status.”
Following the judgment, the UK Government indicated that it would seek permission to appeal the decision. As a result, no changes to the current design of the EUSS are expected at this stage.
Iain McIver, SPICe Research