The UK government has acted illegally in the way it has implemented the post-Brexit settlement scheme for EU citizens seeking permanent residence in the UK, the High Court in London has ruled.
In a setback for the government, the court said the scheme had been administered in an “unlawful” manner by putting unfair hurdles in the way of EU citizens seeking to remain permanently.
Under the scheme, which was agreed in 2018 as part of the EU-UK divorce deal, some 2.6mn EU citizens who were living in Britain before Brexit were allowed to claim residence once they had lived in the country for five years.
Under the terms of the Withdrawal Agreement, EU citizens who had been granted “pre-settled status” by the Home Office should automatically have received full rights at the end of the five-year waiting period.
However, the UK government said EU citizens were required to make a separate application to convert their “pre-settled” status into permanent residence.
This was ruled “wrong in law” by the High Court on Wednesday following a successful judicial review brought by the Independent Monitoring Authority for the Citizens’ Rights Agreements, an EU citizenship watchdog that was set up as part of the EU-UK exit deal.
The ruling by Mr Justice Lane found that under the Withdrawal Agreement, residents’ rights could only be lost in specifically defined circumstances — for example, staying outside the UK for too long — and that a failure to apply to upgrade to settled status was not one of those circumstances.
The Home Office said it was “disappointed” by the judgment and intended to appeal.
Home Office minister Lord Simon Murray said the UK-EU settlement scheme went “above and beyond” the UK’s strict obligations under the Withdrawal Agreement. “EU citizens are our friends and neighbours, and we take our obligations to securing their rights in the UK very seriously,” he added.
The ruling is a victory for The3Million, an EU citizens’ rights pressure group, who had argued at the hearing on November 1 and 2 that the Home Office’s operation of the system would put the most vulnerable EU citizens at risk.
In a statement following the judgment, The3Million said the decision was “an extremely important ruling with far-reaching implications” which would protect the rights of EU citizens in the UK.
The group had argued that those who had merely forgotten to convert their status risked losing the right to work, access to free NHS healthcare, the right to social security benefits and the ability to re-enter the UK after going on holiday.
“Often it is the most vulnerable among us who may forget to make another application, or who may struggle to complete an application or obtain the necessary evidence to satisfy the Home Office,” the group added.
Kathryn Chamberlain, IMA chief executive, said she was pleased that the judge had recognised the significant impact this issue could have had on the lives and livelihoods of citizens with pre-settled status.
“When we brought this judicial review, our intention was to provide clarity for citizens with pre-settled status, of which there were over 2.4mn when we filed this case in December 2021. This judgment that the current system is unlawful provides that clarity,” she said.