ISSN 2330-717X

Post-Brexit Settlement Scheme Leaves EU Nationals At Risk Of Deportation

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By Benjamin Fox

(EurActiv) — The UK’s ‘settlement scheme’ for EU nationals living and working in Britain risks leaving 2.6 million people at unlawful risk of deportation; lawyers told the High Court in London. 

In court hearings on Tuesday (1 November) as part of the judicial review of the settlement scheme, Robert Palmer, the barrister for the Independent Monitoring Authority, told the court that those who do not make another application within five years of being granted pre-settled status would automatically lose their right to residence in the UK, making them an illegal overstayer who is liable to detention and removal’. 

Approximately 50% of the nearly 7 million EU nationals to apply under the scheme were awarded ‘settled status’, which gives them permanent resident status in the UK. However, over 40% have been granted ‘pre-settled status’, which only gives them residency rights for five years, though with equal access to welfare and other state benefits, at the end of which they must apply again.  

Failure to apply on time would result in the automatic loss of the right to work, access housing, education, and claim benefits, leaving them at risk of being deported. 

Unlike applications for settled status from non-EU nationals, applying for the EU settlement scheme is free. 

Palmer told the High Court that this provision is “straightforwardly incompatible with the withdrawal agreement, which does not permit the loss of rights to residency to EU citizens in these circumstances”. 

The Independent Monitoring Authority (IMA), the independent body set up by the Withdrawal Agreement to safeguard the rights of EU nationals in the UK, contends that legally, EU citizens’ rights “do not expire” unless they are lost or withdrawn for reasons set out in the withdrawal agreement. 

The IMA) launched judicial review proceedings against the Home Office earlier this year, arguing that having already proved their right to remain in the UK, there should be no grounds for people with pre-settled status to face deportation or the loss of rights. 

From the start of the process, the Home Office has maintained that the settlement scheme is more generous than the UK is legally required to offer and that the European Commission had been aware that EU nationals with pre-settled status would be required to submit a second application for permanent residency throughout the Brexit process.

In its communications, the Home Office has stressed that it will look for reasons to grant settled status rather to reject applications. 

Making representations for the Home Office, David Blundell contended that the withdrawal agreement only conferred “limited reciprocal protection” of rights and that the settlement scheme could not be compared to the rights conferred by freedom of movement. 

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