IMA charging to the rescue? Judicial review aims to avert oncoming EUSS expiry catastrophe for people with pre-settled status
It’s the IMA versus the Home Office! Coming to court soon! On the 1st-2nd November to be precise. The IMA is challenging one of the most problematic, exclusionary, and risky aspects of the EU Settlement Scheme, in a case that could have huge ramifications for more than 2 million people who have been granted pre-settled status in the UK.
The Independent Monitoring Authority, the organisation tasked with protecting EU citizens’ rights under the UK-EU Withdrawal Agreement, has been granted permission to seek judicial review of the EUSS scheme – in particular the fact that people with pre-settled status have to apply to upgrade to settled status before their PSS expires – or they end up losing automatically and irreversibly, all EU-law based or Withdrawal Agreement based rights to reside in the UK.
What is the problem?
Well, see that last sentence. In the run up to the original deadline for applying to the EUSS – the 30th June 2021, a lot of NGOs, advisers, academics and lawyers expressed concern about the people who would not apply in time, and fall through the net. The fact there is now a cohort of vulnerable, unregistered EU nationals who *should* have had EUSS status, residing in the UK, whose ‘unauthorised’ status might not come to light for years yet, is still a Wind-rush-esque ticking time bomb.
And now we have the same problem, but amplified, coming down the line. Pre-settled status is a temporary status that will expire five years after it is awarded. Before it expires, PSS holders will, at some point, become eligible to apply for settled status. If they do not make an application for settled status before their PSS expires – too late. They lose any EUSS status, regardless of how long they have actually been in the UK (bearing in mind that many people will have been incorrectly classified as having pre-settled instead of settled status in the first place, if they had trouble with the application of adducing the required evidence of residence).
It is ANOTHER cliff edge. Except, worse than that, it is a whole coastline of cliff edges. Because there is no single deadline around which to attempt to mobilise a publicity/awareness raising campaign (should the government have been so minded). Each PSS holder has their own personalised deadline, making them personally responsible for knowing when their status expires. And the complexity does not end there. What is vital is not just the deadline, but the window for making an application. Each person will become eligible to apply for settled status – ie their window opens – at a different point, depending on when their period of residence started in the UK. So, with different starting points, and different deadlines, each person has a different window of opportunity to apply. For some people, the window will be years. For others, weeks. All with different dates attached. The coming confusion, chaos, missed deadlines and mass disentitlement is, as things stand, inevitable, and will start in August 2023 – five years from the first awards of PSS. As of 30 June 2022, only 384,470 people are recorded as having made ‘repeat applications’ that resulted in moving from pre-settled to settled status. There are a LOT left to go.
What is the IMA arguing?
The IMA is challenging this situation with quite a dramatic submission, which they have very helpfully made public, having published their Statement of Facts and Grounds, and their skeleton argument. They are not only arguing that people should not automatically lose status if they miss their deadline – they are arguing against the imposition of a whole second application for settled status at all.
The Withdrawal Agreement (WA), goes their argument, allows for only one process of application under Article 18. That process can be, as the UK opted, constitutive, meaning that some people will lose their status. But the WA does not provide for imposing a second, constitutive application process upon those who have already been through it and acquired WA residence status, and moreover, makes clear that the residence rights conferred under Article 18 may only be conditioned by/in accordance with the Withdrawal Agreement. Article 13(4) states:
The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, [ie people with ‘temporary residence rights’ given effect as pre-settled status] other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned.
Article 18 refers to a single application process for a single, new residence status:
The host State may require Union citizens or United Kingdom nationals, their respective family members and other persons, who reside in its territory in accordance with the conditions set out in this Title, to apply for a new residence status which confers the rights under this Title and a document evidencing such status which may be in a digital form.
Having been through the EUSS application process means, according to the IMA, that people with pre-settled status have already passed through the gateway permitted by the WA. Thus, pre-settled status in itself must confer the rights under Title, which includes the rights that attach to settled status, as and when they meet the conditions outlined in Article 15 WA. So the IMA contend that the ‘right of permanent residence accrues automatically once the conditions for obtaining it have been fulfilled’. The UK government can, their submission adds, set an administrative procedure for the recognition of their newly acquired permanent residence right, but it is unlawful to make the continued enjoyment of a right of residence beyond five years contingent upon making another application.
The skeleton in essence makes two key arguments: first, that there is no provision in the WA to require another application before acquiring settled status. And second, there is no provision in the WA for losing pre-settled status after a fixed period of time. the3million are also applying to make an intervention in the case.
What do we know about the Secretary of State’s response?
The IMA’s skeleton makes various references to, and responses to, the Secretary of State’s submission. It refers to four key claims on the part of the SoS, but the first three are all intertwined; they are that (i) on the IMA's case the status issued does not confer rights; (ii) The IMA’s interpretation would lead to a system the same as the one before the end of the transition period; and (iii) the IMA is arguing for ‘a “confusing and largely pointless halfway house between a declaratory and a constitutive system” [57(c)]. The fourth argument is that the IMA’s interpretation would require extra provisions in the WA.
Does the IMA’s proposed interpretation create a half-way house?
No. The UK has introduced a fully constitutive scheme, with a hard deadline. Application for EUSS status was/is mandatory for anyone seeking to exercise the citizens’ rights in the Withdrawal Agreement. It creates a bright line between those who have WA status and protection and those who do not.
On the other hand, the current scheme is rather a hybrid regime, whereby people who have met the conditions imposed to gain protection from the Withdrawal Agreement may yet face the automatic revocation of those rights, for reasons unrelated to, and so not permitted under, the Withdrawal Agreement itself.
The question of whether the constitutive system proposed is ‘pointless’ if rights might subsequently automatically become manifest, can be turned on its head. It is arguable that there was not much point in forcing EU citizens through the rigmarole of a constitutive application process, with a hard deadline and all the risks that entails, only for them to automatically lose their Withdrawal Agreement status entirely, on grounds not at all provided for in the Withdrawal Agreement.
But aren’t pre-settled status and settled status, by definition, two different statuses?
Here is a potentially important semantic point. Pre-settled and settled ‘statuses’ are domestic constructions. In contrast, the WA allows for the acquisition of different residence rights (temporary/permanent), which are not described as statuses. Both rights attach to a single new residence status. So EUSS status is a single entity as far as the WA is concerned – it is overarching Withdrawal Agreement status, and is a gateway for the rights contained in Title II. It effectively confirms that the holder is a beneficiary of the Withdrawal Agreement. There is no provision for multiple, new, separate statuses.
What are the possible outcomes?
The court may decide in favour of the IMA – that the Withdrawal Agreement simply does not provide for a second constitutive application scheme, and finding that settled status should accrue automatically. Or, it may suggest that the SSHD is entitled to request temporary rights holders to apply for permanent residence before they acquire it, but, that there is no legal basis for imposing an expiry date on pre-settled status, so that the SSHD should not automatically and irreversibly strip Article 18 status from those who do not make such an application by a given date. Or, the court may find that it cannot answer the question without seeking guidance from the Court of Justice of the EU on the interpretation of the WA, and so refer a question to the CJEU under Article 158 WA. Finally, it may decide that it does not need assistance in order to find in favour of the SSHD – that the government is entitled to impose conditions, deadlines, and forfeitures not contained in the Withdrawal Agreement, and give the green light for the prolonged coming catastrophe.
Finally, whatever the court decides, there is a strong chance of any judgment being appealed upwards.
When will the court decide?
We know the hearing is listed for the 1st/2nd November – watch this space for news of the handing down of the judgment, and/or any permission to appeal applications.