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Home Office sued to protect rights of 2.5 million EU citizens

The Independent Monitoring Authority has issued judicial review proceedings against the Home Office in a rare move against the UK government’s immigration department.

Speak to IAS if you have any questions about your visa application or immigration case. We are ready to assist you and your loved ones and provide you with expert legal advice about your circumstances.

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    Why is the Home Office being sued by IMA?

    The Independent Monitoring Authority (IMA) was established to monitor public bodies in upholding the rights of EU and EEA/ EFTA citizens in the UK and Gibraltar.

    These Citizens’ Rights Agreements were established as part of the Withdrawal Agreement following Brexit.

    The IMA sent a pre-action protocol letter to the Home Office on 15 October 2021.

    This letter stated their concerns for the rights of EU, EEA, and EFTA citizens who have been granted pre-settled status.

    Currently, if those with pre-settled status fail to apply for settled status before the expiration of their status, each person will be at risk of removal or deportation from the UK.

    The concerns of the IMA include:

    • EU citizens with pre-settled status must apply for settled status after five years’ continuous residence in the UK
    • EU citizens will be penalised by losing their rights to residence if they fail to apply within the timeline. This means losing access to social housing, welfare benefits, and healthcare

    Unfortunately, the Home Office did not agree with the interpretation of IMA on the matter of the Citizens’ Rights Agreements (CRA).

    The IMA argues that CRAs provide for a loss of rights in some specific circumstances, and believes that the Home Office is in breach of the Agreements.

    Why are EU citizens at risk?

    Under the EU Settlement Scheme (EUSS), EU citizens living in the UK prior to 30th June 2021 were required to register.

    At this point, they would be eligible for settled status (similar to indefinite leave to remain) or pre-settled status.

    After five years, those with pre-settled status will be required to apply again to become settled, or alternatively, extend their pre-settled status.

    However, if an EU citizen fails to do either, they will be considered “unlawfully present” in the UK as a result of failing to apply.

    By 30th September 2021, there were approximately 2.4 million individuals granted pre-settled status.

    The number of people affected will be those from this group who do not apply for settled status by the expiry of their leave to remain (the earliest point which will be in 2023).

    Reaction to the IMA’s legal action against the Home Office

    The3million, a group set up to advocate for EU citizens in the UK, have welcomed the news. The Head of Policy, Luke Piper, stated:

    “The risk to millions of EU citizens and their family members’ livelihoods, housing and access to health care if they do not apply before their pre-settled status expires cannot be understated.”

    In February 2021, the group submitting a report to the IMA with the following recommendation for those who had been granted pre-settled status:

    “Ensure the government changes legislation so that expiry of pre-settled status cannot result in loss of rights for any reasons other than those specified in Article 20 of the Withdrawal Agreement. An administrative penalty should be the only allowable consequence.”

    The Chief Executive of the IMA, Dr Kathryn Chamberlain, stated in the announcement

    “In taking legal action now we hope to provide clarity for those citizens with Pre-Settled Status of which there are 2.485 million as of November 2021.”

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      We have submitted many settlement applications on behalf of our clients. We can advise on the documentation required to accompany applications and provide expert legal advice based on the circumstances of your family members.

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