The EU Settlement Scheme (EUSS) is unlawful because it contravenes the Withdrawal Agreement negotiated between the UK and the EU. Under the EUSS, certain EU citizens living in the UK after Brexit were granted limited leave to remain for five years and were required to re-apply if they wished to remain lawfully in the UK thereafter. In this ruling, Lane J held that those who had been granted the residence rights created by Part 2 of the Withdrawal Agreement could not lose those rights at the end of a period of limited leave if they failed to re-apply. The claimant was the Independent Monitoring Authority for the Citizens’ Rights Agreements, serving to protect the rights of EU citizens living in the UK, which sought judicial review of the EUSS regulating residence rights of EU citizens following the UK’s withdrawal from the EU. After 31 December 2020, EU citizens could no longer enter or remain in the UK pursuant to the right of free movement conferred by Article 21 of the TFEU. Part 2 of the Withdrawal Agreement negotiated between the UK and the EU provided for rights of residence for those who had settled in the UK before the end of the withdrawal transition period and Article 13(1) provided for a right to reside subject to specified limitations and conditions. Article 15 conferred a right of permanent residence on those who had lawfully been residing in the UK for a continuous period of five years.
Notably, Article 13(4) provided that the SSHD could not impose any other limitations or conditions for obtaining or retaining residence rights and Article 18(1) empowered her to require all EU citizens living in the UK to apply for a new residence status conferring the residence rights set out in Part 2. Indeed, the SSHD purported to exercise that power by establishing the EUSS. The EUSS was “constitutive”. The Part 2 residence rights did not arise automatically upon the fulfilment of the conditions necessary for their existence and instead EU citizens living in the UK were required to apply for leave to remain under the Immigration Act 1971 so that Part 2 residence rights could be conferred by the grant of residence status. Upon such an application, those EU citizens who had lived in the UK continuously for five years or more would be granted indefinite leave to remain (“settled status”). Those who had been in the UK for less than five years would be granted limited leave to remain for five years (“pre-settled status”). Significantly, if they did not make a further application for leave to remain, then upon the expiry of their limited leave they would lose their pre-settled status and would become overstayers.
Continue reading