On 20 December 2022, in the case Independent Monitoring Authority v Secretary of State for the Home Department, the High Court found that the government’s use of the European Union Settlement Scheme (EUSS) was unlawful.

The background

Following Brexit, the Withdrawal Agreement was agreed by both the UK and the EU, which addresses various terms of the UK’s exit from the European Union. New laws were contained in the Withdrawal Agreement such as Part 2 of the Agreement which was drawn up to protect the rights of millions of EEA citizens (people from EU countries and Iceland, Liechtenstein and Norway) living in the UK. The laws at Part 2 give these EEA nationals the right to continue to live, rent, work, study, and access state services in the UK, as they had been able to pre-Brexit.

Before Brexit, it was not necessary for EEA nationals to apply for any sort of immigration status in the UK to be able to access these rights. But Brexit threw up the question of how these EEA nationals’ immigration status would be defined once the UK left the EU. The UK Home Office created the EU Settlement Scheme (EUSS) to address this question and to put into action the UK’s obligation to protect the rights set out at Part 2 of the Withdrawal Agreement.

The EUSS allowed EEA nationals who had lived in the UK for five years before 31 December 2020 to obtain settled status. Settled status means that you can stay in the UK indefinitely, and is a secure and permanent immigration status. Those who had been here for less than five years on 31 December 2020 could get pre-settled status. Those with pre-settled status were granted temporary status or leave to remain, and this expires after five years.

Before the end of their five-year period of leave, those with pre-settled status would then have to submit another application for settled status. However, it was unclear what would happen to those who did not apply for settled status or who did not apply in time. It would appear that they would become overstayers and lose the rights they previously held. It was reported by the 3million that thousands of people with pre-settled status could lose their rights to live, work, study, and access state support in the UK, if they let their status expire. There was also the risk of detention or deportation.

The case

The Independent Monitoring Authority (IMA) is a body that was set up as part of the Withdrawal Agreement to protect the rights of the EU citizens who fall into its scope. The IMA issued the judicial review claim in the High Court to question whether this loss of rights for those with pre-settled status is what had actually been agreed by the UK and the EU in the Withdrawal Agreement.

The UK argued that the EU had agreed to this. However, the IMA successfully argued that it was unlawful for the UK to use the EUSS to create a situation where those with pre-settled status who did not apply for settled status would lose the rights conferred on them by the Withdrawal Agreement.

Mr Justice Lane determined several key points:

• While the UK can put in place a system whereby people must apply for status by a certain deadline, the rights associated with this status once granted can only be lost in the circumstances that are set out in the Withdrawal Agreement – and expiry of status is not one of them.
• Recipients of one type of status ie ‘pre-settled or ‘settled’ cannot be forced by the UK to pursue another. If this were a requirement, then it would be set out in the Withdrawal Agreement.
• Therefore, those with pre-settled status should not lose their rights if they do not make a second application when their leave expires.
• The right of permanent residence accrues automatically once the conditions for obtaining the right have been fulfilled, and it is unlawful for the UK Home Office to withdraw these rights based on the basis that to a person has not applied for settled status.

What now?

The UK Home Office has been granted permission to appeal this judgment. Until the judgment from this appeal is handed down and confirmed, those with pre-settled status should continue to apply for settled status before their leave expires.

If you require advice in relation to the above, we have particular expertise with EUSS applications, and would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

When applying to the European Settlement Scheme from within the UK, most third country nationals (i.e., non-Europeans) will already hold a Biometric Residence Card issued to them because of their right to reside in the United Kingdom under European law. This document proving their status, the Biometric Residence Card, will have been issued under the EEA Regulations.

Third country nationals who have not previously held a Biometric Residence Card issued under the EEA Regulations will be invited to attend an appointment to provide their biometric data with the Home Office provider Sopra Steria. If the application for pre-settled or settled status is granted, the individual will be issued with a Biometric Residence Card under the European Settlement Scheme.

However, those third country nationals who apply to the European Settlement Scheme and already hold a valid Biometric Residence Card issued under the EEA Regulations are currently not issued with an updated Biometric Residence Card.

For example, a third country national who submits an application with two weeks left until their card issued under the EEA Regulations expires will not receive a new Biometric Residence Card under the European Settlement Scheme. The Home Office has confirmed this is because their card is still valid at the time the application was made. They have also confirmed this is the case even if the EEA card has expired by the date of the decision. An individual in this scenario will therefore also not be issued with a new card automatically under the European Settlement Scheme.

While third country nationals have their status recorded digitally on the European Settlement Scheme online portal accessible through Gov.UK, if they do wish to obtain another Biometric Residence Card to reflect their new immigration status, they must make a further application and re-submit their biometric data. Third country nationals are likely to need to do this in practice, given that their status is not linked to their passport, as is the case for European nationals.

Yet unfortunately the decision letter currently sent to applicants who have successfully obtained status is silent on this point and gives no guidance or a link to the appropriate page on the Home Office website where one can apply to update their Biometric Residence Card under the EU Settlement Scheme.

This lack of clarity raises practical issues. While we understand the Home Office plans to move the immigration status of all migrants to a digital only status, this has not yet happened, meaning third country nationals still need to evidence their status to carriers and border staff through a Biometric Residence Card when returning to the United Kingdom from abroad. Unaware that this is the case, we have heard reports of confusion by airline staff and border personnel, difficulty at the border and in several cases people left stranded outside the UK.

Third country nationals granted status under the European Settlement Scheme therefore do require a valid biometric card reflecting their current immigration status. Yet, if they fall into one of the scenarios outlined above, the process to update to a new card is unclear, costly (there is a Home Office fee of £75.20) and lengthy (the Home Office state these applications can take up to six months to be decided).

Instead, we believe all third country nationals should be given Biometric Residence Cards automatically up until the point that the Home Office can rely on digital immigration statuses for all migrants. These cards should be issued at the time the applicant is granted their new status, solving the practical difficulties faced by those third country nationals already holding at the date of application a valid Biometric Residence Card issued under the EEA Regulations.

If you require immigration advice in relation to the issues above, we can help.  Please contact us on 020 7401 6887 or by email at contact@gryklaw.com

As the press reported last week, the Home Office has announced that it has received 3.4 million applications from people seeking to stay in the United Kingdom after Brexit under the EU Settled Status Scheme. The government estimates that the number of EEA and Swiss citizens eligible to remain in the United Kingdom lies between 3.4 million and 3.8 million.  Are they thinking ‘job done’?

The Migration Observatory report about the EU settlement scheme clearly sets out the flaws with the way the government is producing data and counting applications made. The Home Office has a very crude system of just counting every application.  However, there are very basic problems:

• It is not known how many people are eligible to apply and how many still live in the United Kingdom.
• One person may have applied for pre-settled status and settled status – this counts as two applications.
• There are people who have applied to the scheme but have left the United Kingdom.

What we do know is that the Home Office still has a backlog of 320,000 applications and that inevitably, the applicants who have not yet applied are likely to be the more difficult cases including, for example the citizens in children’s homes, victims of domestic abuse, third country national family members of EU citizens and people who are not able to provide the documentation required by the Home Office.  We also know that 300 applications were refused by the Home Office in March 2020.

There is now of course the added problem of  Covid-19  with a slow down in the processing of applications at the Home Office due to reduced staffing levels.  The telephone line set up to assist applicants with the EU Settlement Scheme is not functioning as the Home Office was not able to provide a safe working environment for its case workers. This means that the only way to get in touch with the EU Settlement Scheme staff is by email. The delays in response time are significant and standard responses often appear to be being sent out without any specific information about individual cases.

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Although it is still possible for EU citizens with passports which are chipped to make applications, non-EEA family members are unable to submit applications as the Home Office is currently not accepting passports.  It is therefore not possible to provide identity documents either to the Home Office or to Sopra Steria, the company to which the Home Office has outsourced the initial processing of applications.

There are also some more complex applications which have to be completed on a paper form.  The procedure is that the form has to be requested from the Home Office.  Previously an applicant was required to phone in and outline their case before a paper form was sent out, which is now not possible.  Paper forms can still be requested by email and are then sent to the applicant. The Home Office has reassured us that these applications are still being dealt with, although we know from experience that the delays before the Covid-19 lockdown were significant, and they are only likely to increase now.  These applications would normally be sent back to the Home Office with original documentation but we have been informed by a senior case worker at the Home Office that only copies should be sent to the Home Office.

Given the Covid-19 pandemic, further delays seem inevitable.  There are also likely to be some difficulties ensuring that biometrics are captured as required for the Home Office going forward.  One thing that has been stated categorically, is that the EU Settlement Scheme will not be extended beyond June 2021, despite the Covid-19 pandemic.

If you require assistance in connection with the EU Settlement Scheme or any other EU immigration matter, please contact us on 020 7401 6887 or contact@gryklaw.com.