Robert Palmer KC and Clíodhna Kelleher succeed for the IMA in significant judicial review of EU citizens’ rights in the UK

21 Dec 2022

The High Court has today handed down judgment in R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department, a challenge to the arrangements made by the UK in implementing its obligations under the UK-EU Withdrawal Agreement, the UK-EEA EFTA Separation Agreement.

The IMA is the post-Brexit citizens’ rights watchdog, established in accordance with the Agreements to monitor and protect the rights of EU citizens and EEA EFTA nationals and their family members in the UK. This is the first case brought by the IMA as a claimant in its own right.

Under the Home Office’s EU Settlement Scheme (the EUSS), EU citizens and other qualified applicants who had been granted “pre-settled status” (i.e., limited leave to remain) are required to make a second application to “upgrade” their pre-settled status to “settled status” (i.e., a right of permanent residence in the UK), failing which they will be considered unlawful overstayers, liable to detention and removal and losing the right to live, work, rent and receive social security support in the UK.

Granting the IMA’s claim for judicial review, the High Court determined that these arrangements are unlawful:

  • The grant of limited leave to remain to individuals who apply successfully under the EUSS does not give effect to their rights under the Withdrawal Agreement, the Separation Agreement or the Swiss Citizens’ Rights Agreement because the limitations on leave inherent in that status are a constraint on the residence rights conferred under the Agreements. This is contrary to Articles 13(4) WA, 12(4) SA and 12(3) SCRA which provide that no limitations may be imposed on the residence rights conferred under the Agreements except as provided for in the Agreements.
  • The right of permanent residence under the Agreements accrues automatically to an individual who makes an initial successful application under the EUSS and resides in the UK for the requisite five years. The Secretary of State accordingly cannot require an individual to make a second application for status, or withdraw a right of residence beyond five years based on a failure by an applicant to make a second application for status.

Mr Justice Lane determined that these matters are acte clair and did not require a reference to the CJEU.

The IMA’s application for judicial review was supported by interventions from the European Commission and from the3million.

The IMA has previously published its Statement of Facts and Grounds and skeleton argument for hearing.

Robert Palmer KC and Clíodhna Kelleher were instructed by the IMA.

The case has been reported in the press:

The Guardian

Sky News