Brexit

‘Unlawful’ Pre-Settled Status provisions challenged

A CASE brought against UK Government ministers for "unlawful" Pre-Settled Status scheme provisions opened on 1 November. The case, in the High Court before Mr Justice Lane, was brought by the Independent Monitoring Authority for the Citizens' Rights Agreements (IMA). The IMA was set up under the Withdrawal Agreement on the UK's exit from the EU, to protect the rights of EU nations in the UK as part of that Agreement.

Nameplate of the Delegation of the European Union to the UK in John Smith Square, London SW1

Image © Matt Salusbury

Over two million EU nationals who were already living in the UK at the time of Brexit have Pre-Settled Status. They haven't yet obtained the more stable Settled Status, because they haven't yet met all its criteria. For example, they may not yet have lived in the UK continuously for five years. Being stuck abroad and unable to travel during the covid pandemic resulted in "absences" from the UK for many - and that affected their eligibility for full Settled Status.

EU nationals in the UK with Pre-Setteld Status have to re-apply for Settled Status and risk automatically losing their right to live, work and retire in the UK if for whatever reason they fail to do so in time. Children in care and elderly EU nationals are among those at risk of failing to re-apply when they are eligible for this "upgrade" to Settled Status.

The legal arguments presented by the barrister for the IWA, Robert Palmer KC, include the fact that the Withdrawal Agreement "does not provide for loss of status in such circumstances".

Article 15 of the Withdrawal Agreement states that "once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years." Permanent residence cannot be lost by an EU citizen just because they failed to apply for a bureaucratic "upgrade" to their status. Settled Status is a mean-spirited form of permanent residence.

The IMA argues that "it is unlawful for the Secretary of State to purport to make the existence of a continued right of residence beyond five years conditional upon the making of a further application." Palmer told Mr Justice Lane that the requirement for EU citizens to upgrade to Settled Status and the threat of citizens losing their rights if they fail to do so was "straightforwardly incompatible with the Withdrawal Agreement, which does not permit the loss of rights to residency to EU citizens in these circumstances."

The case continues.

Someone else's Settled Status

Meanwhile, there are apparently also issues with the security of the digital-only Settled Status documents that EU nationals in the UK need to prove their right to work, rent property or receive NHS care.

In October, then Immigration Minister Tom Pursglove admitted "We are aware of technical issues... where individuals have reported that other individuals' face images of personal details appeared on their online digital immigration status." See the report on this on Public Technology.net.

So there have been cases of EU nationals having gone online using their "pass code" to access their digital Settled Status document, only to find someone else's personal details and photo. Pursglove gave assurances that the issue was being investigated and that "all technical issues reported by users of digital immigration status are logged, investigated, and fixed".

© Matt Salusbury

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