The Secretary of State will not appeal against the Judgment made in Independent Monitoring Authority v Secretary of State for the UK Home Department

The UK Government will not appeal against the High Court decision which found the Home Office's interpretation of the Withdrawal Agreement (making EU citizens reapply to stay in the UK) as unlawful. 

Current Home Office rules state that EU nationals (and their family members) with pre-settled status must apply for settled status (indefinite leave to remain in the UK), once their pre-settled status expires. This however may not be possible for those who fail to meet the settled status criteria (e.g. they have excess absences from the UK during their period of residence). In such circumstances, pre-settled status cannot be extended and the applicant may not eligible for apply for settled status. This leaves EU Nationals (and their family members) in a situation where they lose their right to reside and work in the UK.

What was said in the case Independent Monitoring Authority v Secretary of State for the UK Home Department?

In Independent Monitoring Authority v Secretary of State for the UK Home Department, it was found that the Home Office's interpretation of this part of the Withdrawal Agreement was unlawful. The judge ruled that:

• people with pre-settled status must not lose residence rights just because they do not make a second application to the EU Settlement Scheme before the expiry of their pre-settled status; and 
• people with pre-settled status should not be denied permanent residence rights once they have reached the necessary period of 5 years’ lawful residence just because they do not make a second application under the scheme.

Instead, right of residence can only be lost in the precise circumstances defined in the Withdrawal Agreement under section 15(3).

It is understood that the UK government will not seek to appeal the judgment and must now ensure that its policies conform.

What does this mean for you?

This is likely to mean:

1. Those with pre-settled status could 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.
2.   It may also entitle individuals to apply for an extension of their pre-settled status.

When Permanent Residence can be removed

It should be noted that under the EU Withdrawal Agreement, permanent residence can still be removed from an EU citizen in the UK on the following grounds:

1. Fraud or deception: If an EU citizen has obtained permanent residence in the UK by providing false information or by deception, their permanent residence status may be revoked.
2. Absence from the UK: If an EU citizen with permanent residence in the UK is absent from the UK for a continuous period of five years or more, their permanent residence status may be lost.
3. Public policy, public security, or public health: If an EU citizen poses a serious threat to public policy, public security, or public health, their permanent residence status may be revoked. However, this would only happen in exceptional cases, and the decision must be proportionate to the circumstances.
4. Ceasing to be a family member of an EU citizen: If an EU citizen obtained permanent residence in the UK as a family member of another EU citizen, and that family relationship has come to an end, their permanent residence status may be revoked.

It is important to note that any decision to revoke permanent residence status must be proportionate and based on individual circumstances. EU citizens have the right to appeal against any such decision. 

What to do next if this affects you and your family members

Our expert Withers UK Immigration teams have extensive experience in advising on the EU Settlement Scheme. For further information as to how we can help please contact our Immigration team, or your usual Withers contact, call +44 20 7597 6000 or email enquiries.uk@withersworldwide.com.