High Court judge rules Home Office European Union Settlement Scheme 'unlawful'

Home Office rules impacting millions of EU citizens living in the UK have been found to be unlawful.

The High Court ruled that the European Union Settlement Scheme (EUSS) breached the UK’s Brexit Withdrawal Agreement.

Mr Justice Lane in London concluded that part of the scheme is based on an incorrect interpretation of the agreement.

The EUSS was established in order to grant eligible people an immigration status allowing them to remain in the UK post-Brexit.

It was deemed necessary for applicants to be given the status due to the UK Government’s intention to repeal the law of free movement following the end of the Brexit transition period.

A challenge was lodged with the court by the Independent Monitoring Authority (IMA) – the watchdog set up by the Government to look after the rights of EU citizens

Lawyers for the IMA argued that scheme was “incompatible” with the withdrawal agreement that was negotiated between the UK and EU in relation to its effect on some EU citizens and their family members.

Robert Palmer KC told the court that millions of EU citizens living in the UK risked losing their rights and being treated as “illegal overstayers” as a result.

Under Home Office rules, those who had been in the UK fewer than five years prior to Brexit and who had pre-settled status are required to reapply to upgrade their status to settled after five years in the country.

Palmer stated that the result of the loss of their rights is that they would be “exposed to considerable serious consequences”, including their right to live, work and access social security supporting and housing in the UK.

He also raised concerns over their liability to face detention and removal from the UK.

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.”

The judge concluded that the Home Office had wrongly interpreted the law on both issues that were challenged by the IMA.

The Home Office has said that it intends to appeal against the ruling.

Lord Murray, Home Office minister, said the Government is “disappointed” by the judgment.

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

“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.

“We are disappointed by this judgment, which we intend to appeal.”