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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