Independent Monitoring Authority v Secretary of State for the UK Home Department

In a landmark judgement, the High Court has found that the EU settlement scheme is unlawful as it fails to properly protect the rights of EU citizens. 

The EU Settlement Scheme was set up to allow EU nationals to secure their right to live and work in the UK after Brexit. Under the Scheme, those who had been continuously resident in the UK for five years could apply for settled status ('indefinite leave to remain'). Those who had been resident for less than five years were able to apply for pre-settled status ('limited leave to remain'), which allowed them to stay in the UK for up to five years, by which point they could be eligible for settled status.

The Independent Monitoring Authority (the 'IMA'), whose role is to monitor the rights of EU and EEA EFTA citizens post Brexit, argued that 2.6 million EU citizens with pre-settled status are at risk of losing their right to live and work in the UK due to what they claimed was an 'unlawful interpretation' of the withdrawal agreement by the Home Office.

Under current Home Office rules, those with pre-settled status must reapply for settled status (indefinite leave to remain) once their pre-settled status expires. However, an application for settled status may not be possible for those who fail to meet the criteria (e.g. they may have excess absences from the UK during their period of residence). In such circumstances, pre-settled status cannot be extended. Therefore, if it is not possible for an applicant to apply for settled status, they will lose their right to live and work in the UK. 

On 21 December 2022, the High Court found that a right of residence can only be lost in the precise circumstances defined in the Withdrawal Agreement under section 15(3). A loss of rights for failure to upgrade from pre-settled to settled status did not fall under one of those circumstances. As a result, Mr Justice Lane stated that the EU Settlement Scheme in its current form is operating in an unlawful manner.

This judgement could enable those with pre-settled status to be automatically upgraded to settled status once they reach five years of residence, with no requirement to make a second application to 'upgrade' their status. It may also entitle individuals to reapply for pre-settled status. 

However, Home Office minister Lord Murray has signalled the intention of the Government to appeal the decision. This is certainly not the end of the matter and while the court process continues, no changes will be made to the operation of the EU settlement scheme. Those holding pre-settled status should continue to apply to upgrade to settled status.