High Court judge rules against Home Office in major development for EEA nationals with Pre-Settled Status

22 December 2022

A recent High Court judgment has ruled against the UK Government: this has some interesting implications for those EEA/Swiss nationals (EEA nationals) with Pre-Settled Status.

Due to Brexit and the withdrawal of the UK from the EU’s Freedom of Movement Treaty, EEA nationals who were living in the UK before 31 December 2020 were obliged to apply to the Home Office for permission to remain in the UK post-Brexit in reliance on their former rights. The Home Office introduced the EU Settlement Scheme in 2018 to facilitate these applications.

Those EEA nationals who had lived in the UK for five continuous years were granted Settled Status (also known as Indefinite Leave to Remain or Permanent Residence).

If an EEA national did not qualify for Settled Status, they were granted Pre-Settled Status for five years. EEA nationals with Pre-Settled Status would then have apply to upgrade to Settled Status once they reached the required five year residence threshold.

There are three crucial issues for EEA nationals with Pre-Settled Status.

  1. Pre-Settled Status cannot be extended so, if an application for Settled Status is not viable, then they need to find an alternative UK immigration status (if they qualified) before the expiry of their status.
  2. Some applicants might not qualify to upgrade to Settled Status if they, for example, have excess absences from the UK during their period of residence. This issue came into sharp relief over the past couple of years due to the pandemic when many people were stranded outside the UK.
  3. Some applicants may not have realised that they needed to file a second application in due course – particularly those considered vulnerable or not technologically proficient.

This potentially leaves tens of thousands of EEA nationals at risk of “overstaying”, i.e. unlawfully remaining in the UK beyond the expiry of their residence permission, with no viable route to remain.

As the first applications to the EU Settlement Scheme were submitted in August 2018, the initial cohort of applicants who could be disadvantaged by the EU Settlement Scheme rules are approaching the five year deadline in August 2023.

It is notable that the EU Settlement Scheme was introduced by the UK Government unilaterally in 2018 before the Withdrawal Agreement was agreed in October 2019 and was not updated after the event.

On 21 December 2022, Mr Justice Lane ruled that a right of residence can only be lost in very specific circumstances which are clearly defined in the EU Withdrawal and EEA EFTA Separation Agreements. Failure to make a second application to the EU Settlement Scheme was not one of those very specific circumstances.

The Home Office argued that the need to re-apply was “merely procedural”, but the High Court ruled that the consequences of not filing a second application to remain (unlawful residence) was so severe that they could not be brushed aside so lightly.

This has two potential consequences for those who made applications under the EU Settlement Scheme.

  1. Those granted pre-settled status could be automatically entitled to reside permanently in the UK once they have reached the five year residence threshold without the need to make a second application
  2. Those granted pre-settled status could be automatically entitled to extend their stay in the UK upon expiry of their limited leave so long as they still meet the requirements without the need to make a second application should they not qualify for Settled Status

As a result of his findings, the Mr Justice Lane declared that the EU Settlement Scheme is currently operating unlawfully.

The UK Government has expressed its disappointment with the ruling and plans to appeal. It seems likely that, unless the UK Government changes its opinion, this issue may be decided in the Supreme Court in due course. Anyone who holds Pre-Settled Status should await future developments.

Flawed EU settlement scheme could create illegal migrants says High Court