The government is putting 2.6 million EU citizens at risk of detention or removal from the country by the Home Office, the high court has heard.
The claim was made at a judicial review of the Home Office’s implementation of the part of the withdrawal agreement guaranteeing the rights of about 6 million EU citizens living in the country before Brexit.
Mr Justice Lane was told that the Home Office’s rules contain a “fundamental feature” which threatens the right of a person to live, work, retire or get access to healthcare.
The case is being brought by the Independent Monitoring Authority, a statutory body set up to protect the rights of EU citizens settled in the country before Brexit.
“The effect of the secretary of state’s scheme is that that person will automatically lose their rights to reside in the UK, making them an illegal overstayer who is liable to detention or removal,” Robert Palmer KC, for the IMA, told the court in his opening argument.
He said the result of the loss of their 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”.
The “fundamental feature” only affects those citizens who were in the UK for fewer than five years and who were granted temporary residency status, known as pre-settled status.
Under the government’s rules, those with this status are obliged to reapply for permanent, or settled, status once their pre-settled status expires at the end of five years.
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.
Any of those 2.6 million who fail to apply for what Palmer called the “upgrade” will automatically be stripped of their employment, social and residency rights under the present rules, the court was told. This is because they then fall under the scope of regular immigration laws.
Palmer told Lane this was “straightforwardly incompatible with the withdrawal agreement, which does not permit the loss of rights to residency to EU citizens in these circumstances”.
The IMA contends that under the law, EU citizens’ rights “do not expire” unless they are lost or withdrawn for reasons laid out in article 15 (3) of the withdrawal agreement.
In its skeleton argument, the IMA contended: “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.”
David Blundell, KC, for the home secretary, told the court the withdrawal agreement conferred “limited reciprocal protection” of rights but not the continuation of free movement rights.
“The language used was precisely careful,” he said, adding it was “not free movement”.
The new post-Brexit regime represented a “quantum shift” with rights related to residency but not the application of EU laws which confer free movement rights, he said.
He argued that a constitutive system such as the settlement scheme operating in the UK was one “which gives rise to rights” unlike an alternative declaratory system that certifies rights that already existed independently.
In this “brave new world” that dawned when Brexit came into force on 1 February 2020 the UK won a right to “regulate its own process and procedure”, which included the right to implement a constitutive scheme.
“There is no inconsistency at all,” with the withdrawal agreement, Blundell said.
A previous court ruling had underlined that the withdrawal agreement emphasised reciprocal protection of rights “relating to residence but no more than that” for citizens impacted by Brexit in the EU and the UK. It said “nothing about substantive rights connected” with residency rights, he said.
The case continues.
