Since our previous article was published (Pre-settled, settled, or unsettled? EU citizens in post-Brexit UK – 13 January 2023), the government has announced it is not pursuing an appeal against the court decision which found the Home Office’s interpretation of the Withdrawal Agreement is unlawful.
A ticking time bomb has been avoided for over 2.2 million people with pre-settled status. This decision means no one can lose their residency rights just because they fail to make a second application before their pre-settled status expires.
The government must now propose and implement changes required in order to conform with the judgment.
Breach of the Withdrawal Agreement
At the3million, we have been raising this issue repeatedly and relentlessly at every opportunity we could, since the summer of 2020: to every select committee, to the EU institutions, to the Independent Monitoring Authority (IMA) as soon as it was set up, and to every Home Office minister who has held the job during these last few years.
In our first report to the IMA, we clearly explained that the loss of rights for not making further applications to the EU Settlement Scheme was a breach of the Withdrawal Agreement. The IMA brought legal action against the Home Office over the rights of vulnerable people, and the3million and the European Commission intervened in the case.
The Withdrawal Agreement clearly sets out the only instances in which people can lose their residency rights, and none of them are linked to a second application. The expiry of pre-settled status has been part of the government’s authoritarian implementation of the Withdrawal Agreement and it has never been acceptable.
The consequences of the High Court decision
The judge ruled that the EU Settlement Scheme is unlawful in two far-reaching ways:
- people with pre-settled status must not lose residence rights just because they do not make a second application to the EU Settlement Scheme before the expiry of their pre-settled status; and
- people with pre-settled status should not be denied permanent residence rights once they have reached the necessary period of 5 years’ lawful residence just because they do not make a second application under the scheme.
This ruling protects especially the most marginalised. While many of us will know when our pre-settled status expires and when it’s time to submit a second application, many people find this process confusing or challenging and struggle to re-apply.
This is particularly true for people with limited digital skills, people who have been here for five years but find it difficult to produce the evidence to prove it, anyone going through a personal crisis, or for children in care. All those people risked being stripped of their rights to continue living and working in the UK, simply for forgetting to reapply in time.
We can feel hopeful, but it’s not done and dusted
It is now vital that the Home Office urgently develops a more pragmatic plan to secure the residency rights of EU citizens and their family members.
At the3million, we stand ready and willing to work with the government to achieve this. It’s high time for the Home Office to redeem itself and meaningfully consult with organisations like us, representing EU citizens, who have been sounding the alarm for years.
While we wait for the Home Office’s rules and processes to be changed, we encourage people with pre-settled status who are eligible for settled status to continue to apply to the EU Settlement Scheme, in order to secure indefinite leave to remain in the UK.
The first pre-settled statuses will expire this summer in August, so there isn’t much time left for the Home Office to get things right.
We welcome this uncommon decision by the Home Office not to pursue an appeal. We hope it is indicative of a genuine change of perspective and renewed will to safeguard marginalised communities. We stand in solidarity with all migrants’ rights organisations relentlessly pursuing a just and fair migration system which puts people first.
Andreea Dumitrache is Interim Co Chief Executive of the3million