Independent Monitoring Authority v Secretary of State for the Home Department

Case Title and Citation

Case Name: Independent Monitoring Authority v Secretary of State for the Home Department

Court: High Court of Justice, Queen’s Bench Division

Date: 20 December 2022

Citation: [2022] EWHC 3274 (Admin)

Introduction

This case concerns the legality of the UK’s EU Settlement Scheme (EUSS) in the post-Brexit era. The Independent Monitoring Authority (IMA) challenged the UK Home Office, arguing that aspects of the scheme violated the Withdrawal Agreement by unlawfully requiring individuals with pre- settled status to make a second application for settled status.

Facts of the Case

Following Brexit, the EU Settlement Scheme (EUSS) was introduced to regulate the residence rights of EU, EEA, and Swiss nationals and their family members who were living in the UK before 31 December 2020. The scheme categorized applicants into:

• Settled Status (Indefinite Leave to Remain) – for those with five years of continuous
• Pre-settled Status (Limited Leave to Remain) – for those with less than five years of

Under the scheme, pre-settled status holders were required to apply again for settled status upon completing five years’ residence. Failure to do so before the expiry of pre-settled status would result in loss of legal residence.

The Independent Monitoring Authority (IMA), a body established to protect the rights of EU citizens under the Withdrawal Agreement, challenged this requirement, arguing that it was unlawful.

Legal Issues Primary Legal Issue:

• Whether the requirement for individuals with pre-settled status to make a second application for settled status was compatible with the UK’s obligations under the Withdrawal

Sub-Issues:

• Whether the UK government was imposing an additional condition that was not explicitly required by the Withdrawal Agreement.
• Whether the EUSS’s requirement to reapply for settled status was in breach of citizens’ rights protections under Article 18(1) of the Withdrawal Agreement.

Arguments

Plaintiff’s (IMA) Arguments:

1. The Withdrawal Agreement does not require a second application; once a person has lawfully resided in the UK for five years, they automatically acquire permanent
2. The Home Office’s policy violated the UK’s international obligations by imposing an unlawful restriction on the rights of pre-settled status holders.
3. If individuals fail to reapply, they risk losing their lawful residence, creating uncertainty and potential discrimination against EU nationals.

Defendant’s (Home Office) Arguments:

1. The EUSS ensures a clear and structured process for granting settled status and prevents abuse of the system.
2. Requiring a second application is a procedural safeguard to confirm that applicants still meet eligibility requirements.
3. The Home Office retains discretion over the implementation of immigration controls under UK law.

Court’s Analysis

• • The High Court examined the Withdrawal Agreement, particularly Article 18(1), which guarantees residence rights without additional administrative burdens beyond what is explicitly stated.
  • The court found that individuals with pre-settled status were automatically entitled to permanent residenceafter five years.
  • The EUSS’s requirement for a second application imposed an unlawful restriction by making the right to reside contingent upon further administrative approval.

Decision

The High Court ruled in favor of the IMA, declaring that:

1. The EUSS requirement for a second application was
2. Individuals with pre-settled status should automatically acquire settled status without
3. The Home Office’s policy was incompatible with the UK’s international obligations under the Withdrawal Agreement.
4. The ruling forced the UK government to revise its EU Settlement Scheme to ensure compliance with the Withdrawal Agreement.

Significance

• This case protected the rights of EU nationals by ensuring they do not lose their residence due to a failure to reapply.
• The ruling reinforced the supremacy of international agreements over domestic immigration
• It clarified the legal obligations of the UK under the Withdrawal Agreement and set an important precedent for future cases concerning Brexit-related residency rights.

Conclusion

This case upheld the rights of EU nationals in the UK and demonstrated the role of judicial oversight in ensuring compliance with international agreements. It reaffirmed that governments cannot introduce additional procedural hurdles that go beyond the Withdrawal Agreement. The ruling compelled the UK Home Office to revise its EU Settlement Scheme, safeguarding the residency rights of thousands of individuals.

References OSCOLA Referencing:

1. Independent Monitoring Authority v Secretary of State for the Home Department [2022] EWHC 3274 (Admin).
2. Right to Remain, ‘Home Office’s European Union Settlement Scheme Ruled Unlawful’ (Right to Remain, 21 December 2022) https://righttoremain.org.uk/home-offices-european- union-settlement-scheme-ruled-unlawful/accessed 18 March 2025.
3. Al Jazeera, ‘UK Post-Brexit Settlement Scheme for EU Citizens Unlawful: Court’ (Al Jazeera, 21 December 2022) https://aljazeera.com/news/2022/12/21/uk-post-brexit-settlement-scheme-for-eu-citizens-unlawful-courtaccessed 18 March 2025.

4. Reuters, ‘UK’s Post-Brexit Settlement Scheme for EU Citizens Unlawful, London Court Rules’ (Reuters, 21 December 2022) https://reuters.com/world/europe/uks-post-brexit-settlement-scheme-eu-citizens-unlawful-london-court-rules-2022-12-21/ accessed 18 March 2025.

Bluebook Referencing:

1. Independent Monitoring Authority Sec’y of State for the Home Dep’t, [2022] EWHC 3274 (Admin).
2. Right to Remain, Home Office’s European Union Settlement Scheme Ruled Unlawful, RIGHT TO REMAIN (Dec. 21, 2022), https://righttoremain.org.uk/home-offices-european- union-settlement-scheme-ruled-unlawful/.
3. UK Post-Brexit Settlement Scheme for EU Citizens Unlawful: Court, AL JAZEERA (Dec. 21, 2022), https://aljazeera.com/news/2022/12/21/uk-post-brexit-settlement-scheme- for-eu-citizens-unlawful-court.
4. UK’s Post-Brexit Settlement Scheme for EU Citizens Unlawful, London Court Rules, REUTERS (Dec. 21, 2022), https://reuters.com/world/europe/uks-post-brexit- settlement-scheme-eu-citizens-unlawful-london-court-rules-2022-12-21/.