The Independent Monitoring Authority (IMA) has commenced legal action against the Secretary of State for the Home Department (SSHD).
The case concerns the requirement under the EU Settlement Scheme (EUSS) for those with Pre-Settled Status to apply for Settled Status, or further leave, to continue their lawful residence in the UK. The IMA states that this is unlawful and a breach of the Withdrawal Agreement.
Background to the case
The Independent Monitoring Authority (IMA) was set up as an impartial body to monitor the implementation of Part Two of the Withdrawal Agreement and Separation Agreement. The UK entered into these agreements as part of its withdrawal from the European Union.
The UK’s withdrawal from the European Union means that EU citizens are now subject to immigration control under the Immigration Act 1971, whereby they must apply for limited leave to enter or remain, or Indefinite Leave to Remain (ILR) to remain lawfully in the UK. However, Appendix EU of the Immigration Rules, along with the EU Settlement Scheme (EUSS), must be implemented in accordance with the withdrawal agreements.
Under the EUSS, those who have been granted Pre-Settled Status hold limited leave to remain for five years. The Home Office requires that such individuals must apply for Settled Status/ILR on completion of five years’ residence. Individuals who are unable to apply for Settled Status may be able to apply to extend their Pre-Settled Status in certain limited circumstances. Those who do not make such applications will no longer be lawfully present in the UK, meaning they would lose their entitlements to work, access housing and free healthcare, and could be detained and deported from the UK.
The main legal argument
The IMA’s case is that the SSHD has breached the terms of the Withdrawal Agreement. They state in their skeleton argument that, under the Withdrawal Agreement, “the right of residence is not limited in time, and in particular does not expire after five years (save in the case of extended absence from the UK)”.
The IMA states that the residence rights conferred by the Withdrawal Agreement cannot expire unless they are lost or withdrawn under the terms of the Withdrawal Agreement. The skeleton argument refers to Article 16 which states that those residing in the UK for less than five years before the end of the transition period shall have the right to acquire permanent residence after completing the necessary period of residence. They also refer to Article 15(3) of the Withdrawal Agreement, which states: “once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding five consecutive years”.
How will this case affect the rights of those with Pre-Settled Status?
EEA citizens, Swiss citizens, and their family members who have Pre-Settled Status, also known as five years’ limited leave to remain, are able to live, work, study, and access free healthcare in the UK. They may leave the UK for up to two years without losing their status.
To continue living in the UK lawfully, they will need to apply for Settled Status/ILR, or possibly Pre-Settled Status/further leave to remain, before their current grant of leave ends. If they fail to do so, this can have serious consequences, as they may lose their right to reside lawfully in the UK and may be subject to detention and removal. As there are currently around 2.6 million people with Pre-Settled Status in the UK, a vast amount of the population may be adversely affected if they are unaware of this requirement.
If the IMA’s case is successful, we may see greater protections for those with Pre-Settled Status.
The case began on 1 November 2022 and remains ongoing.
How our Immigration Solicitors can help
Our immigration team specialise in assisting EU citizens and their family members with applications to the EU Settlement Scheme.
If you require legal assistance or would just like to discuss your situation with one of our experts, please contact us or complete our enquiry form below.
