On 21/12/2022 the High Court has handed down incredibly helpful judgement for EU Pre-Settled status holders. The relevant case is: R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department  EWHC 3274 (Admin). This judicial review case was brought by the Independent Monitoring Authority (IMA) and supported by the European Commission and by the3million Ltd.
The IMA is the post-Brexit citizens’ rights watchdog established under the UK-EU Withdrawal Agreement (‘WA’) to monitor and protect the rights of EU citizens and their family members in the UK. The IMA’s High Court judicial review case was brought as a challenge to the UK government’s implementation of the citizens’ rights provisions under the UK-EU Withdrawal Agreement (‘WA‘).
What are the main issues raised for EUSS limited leave holders
The IMA’s claim concerns those individuals who have been granted five years’ limited leave to enter or remain (Pre-Settled Status) under the EU Settlement Scheme; or who may be granted this leave in the future.
In their judicial review case, the IMA contended that the grant of time limited (5-year) leave (Pre-Settled Status) and subsequent requirement to make a 2nd application for Settled Status does NOT comply with the United Kingdom’s obligations under the Withdrawal Agreement (WA).
In a nutshell, IMA’s case was that in light of the Withdrawal Agreement (WA) there can be only one mandatory EUSS application. This would further mean that the EUSS rights are not lost if Pre-Settled status holder fails to make a further application to the EUSS during the 5 years of Pre-Settled status validity (this was the 1st issue raised by IMA in the High Court case) and that permanent resident Settled Status is acquired automatically once the requirements for the status are met (2nd issue raised by IMA in the High Court case).
For background information, under the current EU Settlement Scheme (EUSS) rules set out in Appendix EU, Pre-Settled Status holders lose their 5-year Pre-Settled status, along with all the rights which accompany it, when fail to make another EUSS application within the 5 years. The fresh application can be either for indefinite leave to remain (i.e. Settled Status) under the EUSS, or for a further period of limited (Pre-Settled) leave. Should they fail to make either of the two applications, the effect of the current law is that they will become unlawfully present in the United Kingdom. As a result, they will be exposed to serious consequences, affecting their right to live, work and access social security support.
The IMA’s second main point (second issue) raised in the case was that the right of permanent residence (Settled Status) accrues automatically once the conditions for obtaining it have been fulfilled by the individual concerned. The IMA pointed out that it is unlawful for the Home Office to withdraw a right of continued residence beyond the five years Pre-Settled Status validity by reason of a failure of an individual to make any further application during the 5 years.
High Court decision in favour of the IMA
In short, High Court Judge Lane has upheld the IMA’s claim and the IMA succeeded in both its claims: 1) There should be only one mandatory application under the EUSS (EUSS Pre-Settled status holder should not lose their EUSS rights if fails to make a further EUSS application within 5 years). AND 2) The EU Settled Status is acquired automatically.
However, the Home Office is seeking permission to appeal the High Court decision to the Court of Appeal, which means that the decision may be changed by the Court of Appeal. While that judicial process continues, the EUSS remains unchanged and therefore holders of Pre-Settled status should continue to apply for Settled Status once they meet the relevant criteria.
Citation from the High Court judgement: ‘GENERAL CONCLUSIONS AND NEXT STEPS 193. Having found for the claimant on both issues, the claimant is entitled to a declaration that the defendant’s interpretation of the Withdrawal Agreement, the EEA EFTA Agreement and the Swiss Citizens Rights Agreement is wrong in law and that the EUSS is accordingly unlawful insofar as it (a) purports (as described in the court’s findings on the first issue) to abrogate rights of residence arising under the Agreements in respect of those granted limited leave to remain; and (b) purports to abrogate the right of permanent residence in the manner described in the court’s findings in respect of the second issue. 194. I invite the parties to seek to agree an order which gives effect to this judgment and which deals with any consequential matters.’
R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department  EWHC 3274 (Admin) judgement: https://ima-citizensrights.org.uk/app/uploads/2022/12/IMA-FINAL-judgment.pdf
Withdrawal Agreement: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:12019W/TXT(02)&from=EN
EU Directive 2004/38/EC: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32004L0038