High Court: Automatic Loss of Rights under the EUSS is Unlawful
The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) recently won its Judicial Review challenge against the government, in which it argued that the UK was unlawfully implementing its obligations under the Withdrawal Agreement (and associated agreements for Swiss Citizens and EEA EFTA citizens).
The European Commission and the3million Ltd intervened in the proceedings.
The High Court found that the UK was implementing the Withdrawal Agreement unlawfully.
Under the EU Settlement Scheme, EU citizens and family members that have been granted limited leave to remain for 5 years (Pre-Settled Status) are required to make a further application, before their leave expires. This would ‘upgrade’ their status from Pre-Settled Status to Settled Status, which would give them the right to live permanently in the UK. Alternatively, they are required to extend their limited period of leave, if they do not meet all the necessary conditions for Settled Status, either under Appendix EU, or a different route.
Failure to make an application in time, would mean that the Home Office would consider them overstayers and they would lose their right to remain living lawfully in the UK.
Unlawful limitation on leave
The Judge found that this approach was unlawful as the Withdrawal Agreement did not permit the Home Office to impose this condition on the rights of beneficiaries. This was primarily based on Article 13 of the Withdrawal Agreement which relates to residence rights. In particular Article 13(4) was relied on which states that:
‘The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.’
The Judge considered that the ordinary meaning of Article 13 of the Withdrawal Agreement prohibits the imposition of any limitations or conditions for obtaining, retaining or losing residence rights other than as expressly set out in the Agreement. Failing to make a further application was not a limitation or condition of retaining residence rights set out in the Withdrawal Agreement.
This meant that after being granted a right of residence (i.e. Pre-Settled Status), this status and right of residence could not be lost by failure to make a further application in time.
In other words, although the Withdrawal Agreement set out guidance for the initial recognition of residence rights, it did not provide for a further check in order to retain this right. Reference was also made to Article 39 of the Withdrawal Agreement which gives life-long protection to beneficiaries, unless there is a change in circumstances.
Automatic accrual of permanent residence
This issue turned on the interpretation of Article 18 of the Withdrawal Agreement. This required individuals to make a single application for a new residence status. Mr Justice Lane found that there was no basis to construe the Withdrawal Agreement as requiring a person to make a second application for residence status. He went on to state that:
‘the WA means that the rights conferred by the grant of new residence status under Article 18 to those who do not, at that point, have a right of permanent residence, includes the right to reside permanently in the United Kingdom, pursuant to Article 15, once the five-year period has been satisfied (subject to the conditions mentioned in Article 15(1)). I reach this conclusion by reference to Article 31 of the Vienna Convention. I do not do so by importing any free-standing principles of EU free movement law because, so far as this country is concerned, there are no such free-standing principles. I confirm that there is no need for a reference to the CJEU. The matter is acte clair.’
He considered that there was no need to refer this issue to the CJEU as it was ‘acte claire’.
This means that a person who has been granted Pre-Settled Status in the UK should automatically obtain the right to reside permanently in the UK, as long as they meet the relevant criteria (i.e. once they have lived in the UK lawfully for a continuous period of 5 years).
The effect of the ruling is that it protects the rights of many beneficiaries of the EUSS, particularly those that are vulnerable. Failing to make an ‘upgrade’ application would otherwise expose them to the full effect of the ‘hostile environment’ which can lead to devastating consequences for individuals as they would lose their right to work, rent, obtain benefits, travel outside the UK, access healthcare and could lead to destitution.
It also exposes a fundamental flaw in the entire mechanics of the UK’s EU Settlement Scheme. The Home Office has now indicated to IMA that it will not be appealing against the decision. It is not yet clear how the ruling will be implemented.
In particular, it is unclear what position the Home Office will take with regard to those who have been granted Pre-Settled Status, but would not meet the criteria for Settled Status. This could be the case if someone has broken their continuous residence through a lengthy absence. In accordance with this ruling, such individuals cannot lose their Pre-Settled Status, but they will also not be eligible for Settled Status.
It is also unclear how those that would be eligible for Settled Status but fail to make an application, for whatever reason, will be protected. At present, people with Pre-Settled Status will have an expiry date on their period of limited leave.
For now, applicants should continue to apply for Settled Status or alternative routes before their Pre-Settled Status expires to avoid any negative implications.
Contact our Immigration Barristers
For expert advice and assistance in relation to an application under the EU Settlement Scheme, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.