Home Office’s European Union Settlement Scheme ruled unlawful

Legal Updates

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On the 20th December 2022, the High Court ruled that the government’s use of the European Union Settlement Scheme (EUSS) is unlawful. The case was called Independent Monitoring Authority v Secretary of State for the Home Department, and you can read the full judgement here. This case was brought by The Independent Monitoring Authority (IMA). The IMA is the group which was set up to review the rights of EU citizens in the UK after Brexit. This short blog post will outline what the case was about and what the decision means. 

What is the European Union Settlement Scheme? 

The UK left the European Union (EU) on 31 January 2020. This process was called Brexit and came after a national referendum on the issue. As a result of Brexit, laws were introduced to protect the rights of EEA citizens living in the UK. EEA citizens are those from the EU countries, as well as Iceland, Liechtenstein and Norway. Read our toolkit page about EEA Nationals here.

The agreement which came as a result of Brexit is called the Withdrawal Agreement. Part 2 of the Withdrawal Agreement gave EEA nationals living in the UK after Brexit the ability to continue to exercise the same rights to work, study and access public services and benefits as they did before Brexit. 

The European Settlement Scheme (EUSS) was designed to put the key commitments in the Withdrawal Agreement into action. The basic idea of the scheme was to make sure that there would be a transition in immigration status for EU citizens after Brexit. Up until this point, EEA nationals living in the UK were able to live in the UK without having to apply for settled status of any kind.

To apply for immigration status under the EUSS, you had to have been living in the UK before the 31st December 2020.

If you had lived in the UK for less than 5 years before the 31st December 2020, you were able to apply for pre-settled status under the EUSS. Pre-settled status is a limited form of leave to remain which is valid for 5 years.

Before the end of that 5 year period, you had to submit another application for settled status. Settled status is a more secure form of immigration status which means you can stay in the UK for as long as you like, or ‘indefinitely’. For more information about the application process to the EUSS, see our toolkit page here.

The problems caused by the EUSS 

If you made an application for pre-settled or settled status and it is accepted, you should receive a decision letter. After this you will be able to view your pre-settled or settled status online. Then you will be sent a share code which proves that you have status. 

However, there is no physical proof of status under the EUSS. This has caused difficulties for people who have no or very limited access to the internet. Because of this, the digital only scheme is being challenged by organisations such as the3million. For advice on how to use the digital system, see this advice from Settled.

Before the Court’s decision in December 2022, if your pre-settled status was due to expire and you had not yet completed a new application for pre-settled status, you were at risk of losing rights granted under Part 2 of the Withdrawal Agreement.

You were also at risk of losing these rights if you did not make a new application for settled status after you had lived in the UK for 5 years.

This meant your rights to residence, work, education, healthcare, housing and benefits were at risk of being taken away if you simply forgot or were not able to make another application.

What has changed as a result of this decision? 

This decision means that your rights under Part 2 of the Withdrawal Agreement cannot be taken away if you do not make another application for pre-settled or settled status. 

The court ruled that people with pre-settled status cannot lose their rights if they don’t make a second application to EUSS before the expiry of their pre-settled status. This means people with pre-settled status will not lose their rights if they do not make an application for settled status when they become eligible. The court said that there was nothing in the Withdrawal Agreement that said it was necessary for someone with pre-settled status to make a second application for permanent residence. 

So, if you have pre-settled status and have been living in the UK for five years, you are automatically entitled to settled status.

As a result of this decision, some people who did not make a new application for pre-settled or settled status but have now been automatically granted status might not have evidence of their status. In the decision the court said that people with pre-settled status can continue to rely on Digital Immigration Status.

Although you still won’t have any paper documentation which proves your status, your details should still be entered into a Home Office database. This means that potential employers or landlords should be able to check your status with your share code. You can read Home Office guidance on digital status here.

What is next? 

The Home Office is seeking permission to appeal so this might not be the final decision on this issue. But if this decision is upheld by higher courts, the government will be forced to change the law. 

In the meantime, if you have lived in the UK for five years and are eligible to apply for settled status, you should still apply. 

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12 comments on “Home Office’s European Union Settlement Scheme ruled unlawful

  1. Sher Muhammad Khan (Family member of EU National) on

    I personally, accept the high court decision that the persons who have already EU pre-settlement scheme, they don’t need to make a second application for permanent residence including the family members of EU nationals. In the decision the court said that people with pre-settled status can continue to rely on Digital Immigration Status. I think that court’s decision should be final. And the UK government also should follow this decision without any delaying tactics. It would be suitable and comfortable for everyone. Thanks!

    Reply
  2. Sher Muhammad Khan (family member of EU national) on

    Please I want clarification that family members of EU nationals will also be got automatically settled status from pre-settled status like EU nationals after the decision of high court. After making law government will give same status to family members of EU nationals like EU nationals. And the family members will be able to bring their wives and children under EUSS rules an any time. Please explain. I think the government should give same equal rights to family members like EU nationals.

    Reply
  3. Md Dilder Hossan on

    So far as I know EU nationals with Pre-Settled Status will not need to make another application to switch to Settled Status even if their Pre-Settled Status expires, they can continue to live, work, access to public funds etc. My question is – (1). those who don’t qualify for Settled Status because they don’t have 5 years continuous residency in the UK,
    -(2) those who break rules of 6 months in any 12 months periods,
    -(3) those whose were granted Pre-Settled Status and expires on 2025 but don’t qualify for Settled Status.
    What will happen to these people?
    Thank you

    Reply
    • RtR on

      Thank you for your question.

      If you are eligible for settled status it is still a good idea to apply via the scheme before your pre-settled status expires.

      When you have pre-settled status, you can travel in and out of the UK. You can spend up to two years in a row outside of the UK without losing your pre-settled status. Anymore than that and you are at risk of breaking continuous residence.

      Have a look at our Toolkit page for more information https://righttoremain.org.uk/toolkit/eu/ .

      Reply
  4. Sher Muhammad Khan on

    We expect that government will be making law and regulations for the EU nationals and their family members as swiftly as possible after the court decision.

    Reply
  5. Huma Asghar on

    I am a
    Pakistani Citizen, I entered with United Kingdom
    with EEA FP As a family member of my father, Passport holder of Spain

    Background of my
    matter: I got married in Pakistan
    I entered Pakistan on holidays and to be with my husband.
    11/01/2019 (arrival in Pakistan), I was pregnant and
    had a baby born on 28/02/2019, i was hospitalized
    few times due to newly born baby. later the
    departure from Pakistan back to the UK was
    severely affected by the COVID situation, I was
    hospitalized, while staying in Pakistan, it was
    difficult to fly back to UK due flights disruption.
    I applied under EUSS twice one in 2022 and in May 2023. Both time refused. Last refusal said that I submitted only 2 money remittance receipts to show my father is supporting. While the application was in process just few days before the decision in the first week of June 2023 my father dies. His body was brought to Pakistan for funeral. My mother and brothers are British citizens.
    I would appreciate some advice please

    Reply
    • RtR on

      Hello Huma, thank you for your message. We are so sorry to hear of your loss. You can look at resources/get in touch with the organisation ‘Settled’ who specialise in supporting people with the EUSS scheme: https://settled.org.uk/

      Reply

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