The High Court finding in the case of Independent Monitoring Authority v Secretary of State for the Home Department [2022] EWHC 3274 (Admin) that the EU settlement scheme is in breach of the withdrawal agreement.
The Independent Monitoring Authority (IMA) is a government funded, independent body which monitors government functionaries to protect the rights of the citizens. The IMA which decided to take the Home Office before the Court arguing that the UK was breaching the obligations under the Withdrawal Agreement by making the citizens of the EU reapply for their right to remain and work in the UK under the European Union Settlement Scheme.
Whereas the Home Office Minister is quoted to have said that the scheme goes ‘above and beyond the obligations of the UK’ under the Withdrawal Agreement to protect the rights and interests of the EU citizens for settlement in the UK.
What is the EU Settlement Scheme?
The EU Settlement Scheme came about due to the need to accommodate the EU citizens in the UK, the government introduced this scheme to allow EU citizens to continue to study, work and live in the UK after the Brexit negotiations had been finalised. The EU Settlement Scheme also provided legal procedure for certain family members of qualifying British citizens who had returned with them to the UK to apply for the UK immigration status for the family member.
What is the Withdrawal Agreement?
Following the 2016 referendum to exit the European Union, the UK Government signed an agreement on the withdrawal of the UK from the European Union on 17th October 2019. This agreement is more commonly called the Withdrawal Agreement. However, during the transition period, the EU law persisted to be applicable including the provisions on free movement (Treaty on the Functioning of the European Union). These international laws were incompatible with the general system of immigration control being practiced in the UK under the Immigration Act of 1971, therefore, the Immigration Act, 1988 under S.7 provided for an exception for application of the Immigration Act on those who were entitled to enter or remain in the UK by reason of EU law. This S.7 was repealed on 31 December 2020 and after this date, EU citizens cannot rely on a right of free movement to enter or remain in the UK. They were now therefore subject to the 1971 Act, in the same way as anyone else who lacks the right of abode.
What was the case about?
This case is about the interpretation of the Withdrawal Agreement as an international treaty in light of the EU settlement scheme. The case concerned all those individuals who had previously been granted 5 years’ limited leave to enter or remain; or who may be granted this in the future (this second group being likely to be small).
The IMA contended that the grant of limited leave to this group of people failed to comply with the UK’s obligations under the Withdrawal Agreement and individuals may possibly lose their pre-settled status under the scheme, along with all the rights which accompany it, for reasons which the Withdrawal Agreement did not allow.
The High Court ruled that citizens of the EU who had been issued with a temporary immigration status as ‘pre-settled status’ should not now be forced into applying again for a permanent status under the scheme which went against the protection under the withdrawal agreement. The Home Office’s interpretation of the Withdrawal Agreement was ultimately rejected.
The judgement is currently in the process of appeal by the Home Office which highlights the flaws in drafting the Withdrawal Agreement by officers of the UK Government.
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Authored by Tehreem Fatima, Paralegal