The claim came under a judicial review of the Home Office’s implementation of the part of the withdrawal agreement that guarantees the rights of around 6 million EU citizens living in the country before Brexit. Mr Justice Lane was told that the Home Office rules contain a “fundamental feature” that threatens a person’s right to live, work, retire or access healthcare. The case is being brought by the Independent Supervisory Authority, a statutory body set up to protect the rights of EU citizens who settled in the country before Brexit. “The effect of the Secretary of State’s plan is that this person will automatically lose their rights to reside in the UK, making them unlawfully staying subject to detention or removal,” Robert Palmer KC, for the IMA, told the court. his opening argument. He said the result of losing their rights was that they would be “exposed to significant serious consequences affecting their right to live, work and access social security and housing in the UK”. The ‘fundamental feature’ only affects those citizens who have been in the UK for less than five years and have been granted temporary residence status, known as pre-settlement status. According to government rules, those with this status are required to reapply for permanent or settled status once their default status expires at the end of five years. Around 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 less than five years. Any of those 2.6 million who fail to apply for what Palmer called an “upgrade” would automatically be stripped of their work, social and housing rights under the current rules, the court said. This is because they then fall under regular immigration laws. Palmer told Lane this was “directly inconsistent with the Withdrawal Agreement, which does not allow EU citizens to lose their residence rights in these circumstances”. The IMA argues that under the Act, the rights of EU citizens “do not expire” unless they are lost or withdrawn on grounds set out in Article 15(3) of the Withdrawal Agreement. In its outline argument, the IMA argued: “The right of residence is not limited in time, and in particular does not expire after five years (except in the case of a prolonged absence from the UK). “The automatic revocation of the right for not making a further application within five years for continued right of residence is inconsistent with WA, which makes no such provision.” David Blundell, KC, for the home secretary, told the court that the withdrawal agreement provided “limited reciprocal protection” of rights but not the continuation of free movement rights. Archie Bland and Nimo Omer take you to the top stories and what they mean, free every weekday morning Privacy Notice: Newsletters may contain information about charities, online advertising and content sponsored by external parties. For more information, see our Privacy Policy. We use Google reCaptcha to protect our website and Google’s Privacy Policy and Terms of Service apply. “The language that was used was just cautious,” he said, adding that it was “not free movement.” The new post-Brexit regime represented a “quantum change” with rights related to residence but not the application of EU law providing free movement rights, he said. He argued that a constitutive system such as the settlement system operating in the UK was a “rights engendering” one as opposed to 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 gained the right to “regulate its own process and procedure”, which included the right to implement a statutory scheme. “There is absolutely no inconsistency” with the withdrawal agreement, Blundell said. A previous court ruling had highlighted that the withdrawal agreement emphasized mutual protection of rights “relating to residence but not beyond that” for citizens affected by Brexit in the EU and the UK. It said “nothing about substantive rights attached” to residency rights, he said. The case continues.
