In an interesting and significant judgement in the case of “Independent Monitoring Authority v Home Secretary” the High Court has ruled that one of the important aspects of the EU Settlement Scheme (EUSS) is unlawful.
As many readers will be aware, those who hold Pre-Settled Status under the EUSS are expected to apply for Settled Status after five years. If they do not do so they effectively become illegal migrants and lose their right to be in the UK. This is something similar to the scheme that exists, for example, for family visas or work visas: in many cases after five years’ leave the migrant may be entitled to settlement.
But is this provision, in the context of the EUSS, really lawful? Well, it seems not. Unlike other parts of the UK Immigration Rules, the EUSS to a large extent relies upon an international treaty: the EU-UK Withdrawal Agreement. As its name suggests, this is an agreement made between the EU and UK concerning the withdrawal of the latter from the former.
But if the EUSS does not correctly reflect the Withdrawal Agreement it is on the wrong side of the law, and the High Court decided that it does not and that it is indeed on the wrong side of the law. The Home Office (which represents the Home Secretary) originally stated that they were going to appeal against the decision – not surprisingly perhaps, because this aspect is a fundamental aspect of the EUSS. But subsequently the Home Office evidently changed its mind, and announced that they would not be appealing, so it looks as though the High Court decision will stand.
Does this mean that nobody who holds Pre-Settled Status will now need to apply for Settled Status? Well, it might, but this is not entirely clear yet. For one thing, we need to wait for the Home Office to publish new rules and policies to reflect the court’s decision. And for another thing, as sophisticated commentators have identified, not quite all of those who hold Pre-Settled Status hold it on the basis of the Withdrawal Agreement and so they are not covered by the court’s decision.
So we think that the best advice at the moment is to wait for developments and see what the Home Office comes up with.
If you have any issues or queries on this subject you are welcome to contact us and we will do our best to assist you.
Senior Immigration Lawyer