Home Office taken to court over ‘pre-settled status’ rules for EU citizens

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British government ministers are being taken to court by a body chaired by the former leader of the Conservatives in the EU parliament, over allegations the government is breaking the law on EU citizens’ rights post-Brexit.

The Independent Monitoring Authority claims 2.6 million EU citizens are at automatic risk of losing their right to live, work and retire in the UK and may face deportation because of an alleged “unlawful” interpretation of the withdrawal agreement (WA) by the Home Office rules.

The high court has already granted the IMA, a statutory body set up post-Brexit to protect EU citizens rights, a judicial review of the Home Office rules.

That case is scheduled to be heard on 1 November.

In a skeleton argument lodged in the high court on Thursday, the IMA said the Home Office had set conditions for residency rights that it claims are “unlawful”.

At the heart of the case is the “settlement scheme” created by the government to ensure the rights of EU citizens from European Economic Area countries who had an automatic right to live in the UK pre-Brexit under free movement rules.

About 5.8 million EU citizens were granted status to remain settled in the UK but 2.6 million were granted “pre-settled status” because they had been in the country for fewer than five years.

Under Home Office rules they are obliged to reapply for the indefinite right to remain in the country, known as settled status, once their pre-settled status expires. If they do not, they risk losing the right to be in the UK.

The IMA contends in its high court argument that the WA “does not provide for loss of status in such circumstances”.

It contends that under the law, EU citizens’ rights “do not expire” unless they are lost or withdrawn for reasons laid out in article 15 (3) of the WA.

That clause makes clear that “once acquired, the right of permanent residence shall be lost only through absence from the host state for a period exceeding five consecutive years”.

The IMA continues: “The right of residence is not limited in time, and in particular does not expire after five years (save in the case of extended absence from the UK).

“Automatic withdrawal of the right for a failure to make a further application within five years for a continued right of residence is incompatible with the WA, which makes no such provision.”

The IMA is concerned that the Home Office rule could have devastating consequences for some EU citizens who for a variety of potential reasons do not apply for settled status.

“The result of the loss of such rights is that they will be exposed to considerable serious consequences affecting their right to live, work and access social security support and housing in the UK, and will be liable to detention and removal,” the high court papers allege.

Some may forget because they lead chaotic lives, others may not have understood the rule that they lose rights and some, including the elderly and children in care, may have had guardians make the application on their behalf.

The IMA argues that there is “no objection” to the requirement that EU citizens with pre-settled status should make an application “in recognition of that right of permanent residence”.

However, it contends: “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, and to withdraw it by reason of a failure to make any such application.

“The IMA submits that the secretary of state’s approach is wrong in law, in that it fails to give full effect to the rights conferred under the WA. The court is invited to so declare.”

The Home Office has been approached for comment.