The UK government has acted unlawfully in implementing its post-Brexit settlement scheme putting the residency rights of millions of Europeans living in the UK at risk, a group has claimed to the High Court in London.
The claim was made on Tuesday at the start of a judicial review brought by the Independent Monitoring Authority for the Citizens’ Rights Agreements, an EU citizenship watchdog, relating to the government’s EU settlement scheme unveiled in June 2018.
The IMA claimed that the Home Office had wrongly implemented the settlement scheme, designed to ensure EU citizens’ residency rights in the UK after Brexit.
Under the scheme, 2.6mn EU residents who did not have five years’ continuous residence in the UK were granted “pre-settled status” — allowing them to stay in the UK for a further five years, from the date they received pre-settled status.
The IMA alleged that the Home Office’s “interpretation and implementation of the [withdrawal] agreements is wrong in law” because citizens who fail to reapply for pre-settled status — or do not apply for settled status — after a further five-year period will automatically lose their rights to live and work in the UK.
The IMA claimed this was “incompatible” with the UK-EU withdrawal agreement “which does not provide for loss of status in such circumstances”. It added that the interpretation was “contrary to the mutual, expressed objective . . . to provide reciprocal protection”.
Robert Palmer KC, barrister representing the IMA, told the High Court that implementation of the scheme was “incompatible with the withdrawal agreement” and was “inconsistent with the protection for EU citizens and family members that the withdrawal agreement was intended to achieve”.
“If a person does not reapply for settled status or pre-settled status the effect of the secretary of state’s scheme is that a person will automatically lose their rights of residence in the UK, making them an illegal overstayer liable for detention or removal and no longer with the right to work,” Palmer told the High Court.
He said that this would become an increasingly topical issue from August 2023 onwards because the first pre-settled status grants were awarded from August 2018. “The IMA is bringing this claim now to prevent this from happening,” he told the High Court.
David Blundell KC, acting for the Home Office, said the government “has consistently adopted a position that an application would be required to renew pre-settled status, and/or to acquire settled status”.
He added that the European Commission was “well aware of that position” even referring to it in its own published material.
“The commission may now advance a different approach, but that
position is wrong in substance, and does not reflect what was agreed at the time” the Home Office arguments claimed. Blundell added that the settlement scheme “confers significantly more generous protection on EU citizens than is provided for by the withdrawal agreement”.
The Home Office said: “We take our citizens’ rights obligations very seriously and, in good faith, we have put in place the arrangements agreed under the withdrawal agreement. As this is ongoing litigation, it would be inappropriate to comment further.”
