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London’s High Court has ruled that the way the UK government has implemented a post-Brexit settlement scheme for EU citizens seeking permanent residence in the UK has acted unlawfully.
In a blow to the government, the court said the scheme was “unlawfully” administered by placing unfair barriers in the way of EU citizens seeking permanent residence.
Under a scheme agreed in 2018 as part of the EU-UK divorce deal, around 2.6 million EU citizens living in Britain before Brexit were allowed to claim residence after they had lived in the country for five years.
Under the terms of the Withdrawal Agreement, EU citizens who were granted “pre-settlement status” by the Home Office should automatically receive full rights at the end of the five-year waiting period.
However, the UK government said that EU citizens need to make a separate application to convert their “pre-settled” status to permanent residence.
This was ruled “wrong in law” by the High Court on Wednesday following a successful judicial review brought by the Independent Monitoring Authority for Civil Rights Agreements, an EU citizenship watchdog set up as part of the EU-UK exit deal.
The ruling by Lord Justice Lane found that under the Withdrawal Agreement, resident rights can only be lost in precisely defined circumstances – for example, staying outside the UK for too long – and that failure to apply for an upgrade to permanent status is a not In those circumstances.
The Home Office said it was “disappointed” by the ruling and intended to appeal.
Home Office Minister Lord Simon Murray said the UK-EU settlement scheme went “above and beyond” the UK’s strict obligations under the withdrawal agreement. “EU citizens are our friends and neighbors and we take our responsibilities to protect their rights in the UK very seriously,” he added.
The ruling is a victory for The3Million, an EU citizens’ rights pressure group, who argued at hearings on 1 and 2 November that the system’s home office operation would put the most vulnerable EU citizens at risk.
In a statement following the ruling, The3Million said the decision was a “hugely important ruling with far-reaching implications” that would protect the rights of EU citizens in the UK.
The group argued that those who simply forgot to change their status risked losing the right to work, access to free NHS healthcare, the right to social security benefits and the ability to re-enter the UK after going on leave.
“Often it is the most vulnerable among us who may forget to make another application, or who may struggle to obtain the necessary evidence to complete an application or satisfy the Home Office,” the group added.
IMA chief executive Kathryn Chamberlain said she was pleased the judge had recognized the significant impact the issue could have on the lives and livelihoods of citizens with pre-existing conditions.
“When we brought this judicial review, our intention was to provide clarity for citizens with pre-settled status, of whom there were more than 2.4 million when we filed this case in December 2021. This ruling provides clarity that the current system is illegal, ” she said.
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