Breytenbachs have good news for EEA nationals and their family members. On 21 December 2022, the High Court delivered a landmark ruling stating that the UK government had not correctly implemented the Withdrawal Agreement. This is the international treaty signed between the UK and the EU on the terms of Brexit. In particular, the Court declared the European Union Settlement Scheme (EUSS) to be unlawful. The EU Settlement Scheme was introduced by the Home Office in 2019 to preserve the rights of the EEA nationals and their family members who had been resident in the UK before 31 December 2020.
Current Legislation on EUSS
According to the current legislation, EEA nationals and their family members who had lived in the UK for a continuous period of 5 years before 31 December 2020 can make an application for settled status. This status is equivalent to indefinite leave to remain. To apply for settled status, applicants needed to primarily show that they had not left the UK for more than six months in any continuous 12-month period during the 5-year period.
If EEA nationals or their family members have resided in the UK for less than five years, they can apply for a 5-year limited leave to remain, known as pre-settled status. People with pre-settled status can apply for settled status when they reach the 5-year residence. At present, it is not possible to apply for an extension of pre-settled status or to apply for settled status when the applicant has excessive absences from the UK. Even though exceptions do apply in these circumstances. Therefore, all EEA nationals (and, when applicable, their family members) are currently obliged to make a second application (for settled status) if they want to continue to reside in the UK lawfully. The settled status application must be made before the expiry of pre-settled status. Otherwise, the person will immediately become an overstayer. Overstaying is a criminal offence in the UK. It attracts very serious consequences such as losing the right to work, receiving free medical treatment, renting accommodation, obtaining a driving licence, etc.
High Court decision on EU Settlement Scheme
This very important Court case, Independent Monitoring Authority v Secretary of State for the Home Department  EWHC 3274 (Admin), states that people holding pre-settled status should not automatically lose or be denied settled status if they fail to make a second application under the EUSS. The High Court clearly mentioned that there is no provision in the Withdrawal Agreement which makes it mandatory for pre-settled status holders to make a second application for settled status. However, readers should note that pre-settled status can be lost if the holder leaves the UK for longer than two years.
Surprisingly, the Home Office has announced that they will not seek to challenge the decision further. This means new immigration rules and guidance must now be introduced, reflecting the Court’s findings.
Advice from Breytenbachs
At this stage, and in anticipation of further guidance from the Home Office, Breytenbachs still advise our clients who qualify for settled status to apply if they wish to continue living in the UK, and, perhaps, to apply for British citizenship in the future. The High Court’s decision is, indeed, excellent news and the result of the passionate work carried out by the independent Monitoring Authority (IMA) and other organisations, like the 3Mililions, which continue to campaign for the safeguards of EEA national’s rights.
If you have any further questions on the EU Settlement Scheme or how this court case may affect your case, please contact us.