Post-Brexit EU settlement scheme could create illegal migrants, says High Court

Unlawful reading of withdrawal agreement leaves millions at risk of ‘detention and removal’, judge finds

Liam James
Thursday 22 December 2022 00:42 GMT
BBC Question Time audience member eviscerates Brexit to Jacob Rees-Mogg

Post-Brexit rules for millions of European Union citizens living in Britain risk turning residents into illegal migrants overnight, the High Court said.

A judge ruled the Home Office’s EU Settlement Scheme (EUSS) is unlawful and is based on an incorrect interpretation of Britain’s withdrawal agreement with Brussels.

The Home Office said it was disappointed by the ruling and intends to appeal.

The case was brought to the High Court with a challenge by the the Independent Monitoring Authority (IMA) – the watchdog set up by the government to look after EU citizens’ rights in Britain after its exit from the union.

Robert Palmer KC, acting for the IMA, told the court that around 2.6 million EU citizens who had been granted “pre-settled status” before the end of the Brexit transition period in 2020 risked losing their rights and being treated as “illegal overstayers” and “liable to detention and removal”.

Under the Home Office’s rules, such people will lose all rights of residence including the right to work, to rent a home and to access healthcare unless they make a further settlement application within five years.

In his ruling, Mr Justice Lane said that, if the Home Office’s interpretation of the law was correct, “a very large number of people face the most serious uncertainty”.

He added: “If they lose legal status in the United Kingdom, their continued physical presence here will depend on the view taken by the defendant on whether to enforce immigration control by insisting on the individual’s removal.

“Someone who makes a belated application for further leave will not know whether the defendant will accept the late application.”

He concluded the Home Office had wrongly interpreted the law on both issues challenged by the IMA – whose case was supported by the European Commission and the3million, a grassroots organisation representing EU citizens in the UK.

A poster encouraging EU nationals to apply to the EUSS during the transition period
A poster encouraging EU nationals to apply to the EUSS during the transition period (AFP/Getty)

In a statement after the ruling, IMA chief executive Dr Kathryn Chamberlain said: “I am pleased that the judge has recognised the significant impact this issue could have had on the lives and livelihoods of citizens with pre-settled status in the UK.

“When we brought this judicial review, our intention was to provide clarity for citizens with pre-settled status ... this judgment that the current system is unlawful provides that clarity. We will now liaise with the Home Office on the next steps.”

Monique Hawkins, policy and research officer at the3million, said: “People cannot lose their rights just by forgetting to make a second UK immigration application – the withdrawal agreement does not allow it.”

Home Office minister Lord Murray said: “EU citizens are our friends and neighbours, and we take our obligations to securing their rights in the UK very seriously.

“The EU Settlement Scheme goes above and beyond our obligations under the withdrawal agreement, protecting EU citizens’ rights and giving them a route to settlement in the UK.”

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