EU nationals in the UK cemented a landmark High Court victory this week.  The Home Office backed down from appealing a decision in which expiry of status under the EU Settlement Scheme was held to be unlawful. 

Does the decision mean the 2.6 million holders of Pre-Settled Status can rest easy and ignore the expiry dates of their immigration permission?

Certainly not yet!

The Home Office notified rights group the3million this week that they will not appeal against a ruling that aspects of the UK's EU Settlement Scheme breached the Withdrawal Agreement that formalised Brexit.

Under the EU Settlement Scheme, European nationals resident in the UK for 5 years before Brexit could convert their free movement rights into full indefinite leave to remain in the UK, or Settled Status.  Those with less time in the UK were granted 5 years of temporary residence known as Pre-Settled Status.

Lingering questions around the status of those whose Pre-Settled Status expired before they made an application to convert to full Settled Status caused the Independent Monitoring Authority to take the Home Office to court.

In his December 2022 decision, Mr Justice Lane held that EU nationals with Pre-Settled Status must not lose residence rights just because they do not make a second application before their status expires.  They should not be denied permanent residence once they have reached the necessary 5 years of lawful residence just because they do not make a second application.

The judgment avoids what the3million co-CEO calls "a ticking time bomb" as we approach the point at which the first batch of Pre-Settled Status holders reach the end of their 5 years in 2024.

All this comes as 140,000 EU citizens have just had their application status under the EU Settlement Scheme updated to show their applications as refused.  These applications were refused between June 2021 and April 2022, but they continued to have access to work in the UK through Certificates of Application.

With the Home Office accepting the Court's decision, they have agreed to implement it "as swiftly as possible".

We will monitor changes to the EU Settlement Scheme resulting from this decision, and encourage our clients to keep a careful eye on the expiry date of their Pre-Settled Status and apply for Settled Status as soon as they are eligible.