Published:  21st December 2022

In a significant judgment the High Court has today (21 December 2022) confirmed that individuals with pre-settled status under the EU Settlement Scheme (EUSS) should not be made to complete a second application to the scheme or risk losing their rights under the Withdrawal Act (WA).

UPDATE: The Government has been instructed as of 15 February 2023 to implement changes in line with this ruling following the news that the Secretary of State will not appeal the judgment.

Currently, individuals granted pre-settled status under the EUSS must make a second application to continue lawfully living in the UK after five years. If individuals do not make a second application, they will lose their right to remain in UK, including the rights to work, rent, receive education and healthcare, and apply for benefits and housing.

They also risk being subject to the serious consequences of Home Office’s hostile environment, including detention and removal from the UK.

The Independent Monitoring Authority (IMA) successfully argued it was unlawful for citizens to lose the rights conferred and protected by the WA. The IMA’s challenge was supported by the EU Commission and the3million.

the3million were particularly concerned that vulnerable groups who are less likely or able to take steps to protect their rights by making a second application would be adversely impacted by the current scheme.

According to Home Office statistics, 40% of applicants to the scheme (2,677,190 individuals ) have been granted pre-settled status as of 25 November 2022.

In summary, Mr Justice Lane determined two important points:

  • Individuals granted pre-settled status should not lose their rights by not making a second application. The constitutive EUSS implemented by the SSHD is “wholly contrary” to the language of the WA and its “obvious intent”. Individuals do not lose their rights under the WA by not making a second application to the scheme on the expiry of their pre-settled status.
  • Settled status rights accrue automatically without the need for a second application to upgrade rights. The right of permanent residence (settled status) in the UK under Article 15 WA accrues automatically, once the conditions for obtaining the right have been fulfilled by an individual. It is unlawful for the SSHD to withdraw these rights where an individual does not make a second application.

Public Law Project acted for the3million who provided the court with valuable written submissions on behalf of its beneficiaries.

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