The UK government’s Settlement Scheme for EU nationals living in the country has been declared unlawful in a major High Court ruling on Wednesday (21 December). 

The judgement means that some 2.5 million EU nationals currently living in the UK with ‘pre-settled status’ will be entitled to permanent residency status, though the government has indicated that it will appeal. 

Home Office Minister Simon Murray said after the ruling that, “EU citizens are our friends and neighbours, and we take our obligations to securing their rights in the UK very seriously,” adding, however, “We are disappointed by this judgment, which we intend to appeal.”

Introduced in 2018, the scheme was designed to allow EU nationals to continue to live and work in the UK after it leaves the EU. Approximately 50% of the nearly seven million EU nationals to apply under the scheme were awarded ‘settled status’, which gives them permanent resident status in the UK.  

However, more than 40% have been granted ‘pre-settled status’, which only gives them residency rights for five years, though with equal access to welfare and other state benefits, at the end of which they must apply again.

Failure to apply on time would result in the automatic loss of the right to work, access housing, education, and claim benefits, leaving them at risk of being deported. 

‘Wrong in law’

During a judicial review hearing at the Royal Courts of Justice on 1 and 2 November, the Independent Monitoring Authority – the watchdog established to safeguard the rights of EU nationals in the UK – argued that 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 their status expired.

In his final ruling, Lord Justice Peter Lane found that the requirement for a second application was “wrong in law” and that people granted pre-settled status are entitled to reside permanently in the UK once they have resided there for the required five-year period. 

The IMA’s general counsel, Rhys Davies said, “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,” he added. 

The decision is set to be appealed by the UK government but, if upheld, will require the government to change the law. In the meantime, however, the law remains unchanged, and people with ‘pre-settled status’ are still bound by the current rules.

The UK Home Office had contended that the Settlement Scheme did not have to offer the same entitlements as under freedom of movement. 

“The EU Settlement Scheme goes above and beyond our obligations under the Withdrawal Agreement, protecting EU citizens’ rights and giving them a route to settlement in the UK,” said Murray. 

The government also argued that the settlement scheme is more generous than the UK is legally required to offer and that the European Commission had been aware that EU nationals with pre-settled status would be required to submit a second application for permanent residency. 

[Edited by Zoran Radosavljevic/Alice Taylor]

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