The UK government’s post-Brexit scheme, designed to allow EU citizens to remain in the country, is facing significant challenges following a series of conflicting court rulings.
Legal experts warn that these decisions could undermine the scheme and leave many EU citizens in a precarious position.
In recent months, three notable cases have highlighted the inconsistency in the judicial interpretation of the scheme’s provisions.
The cases, which involve social welfare payments and housing assistance for French, Slovenian, and Spanish nationals, have resulted in contradictory outcomes, raising concerns about the stability and clarity of the scheme.
In May 2024, a county court judge ruled against Islington Council, which had denied emergency housing to a Slovenian software engineer who lost his job during the pandemic.
This ruling seemed to uphold the engineer’s right to social support despite his precarious employment status.
However, in another May ruling, a judge in a separate case involving Oldham Council and a Spanish woman’s daughter living in the UK reached the opposite conclusion.
This inconsistency was further compounded on July 8 when Justice Robert Jay of the High Court dismissed a case brought on behalf of a French citizen seeking housing assistance due to deteriorating health.
The French woman, who suffers from a rare genetic condition affecting connective tissue, moved to the UK in November 2020.
She was granted pre-settled status by the Home Office before the June 2021 deadline.
Despite securing a job as a teaching assistant, she could not commence work due to a lack of references.
Her health further deteriorated, leading to her being sectioned under the Mental Health Act in December 2023 and subsequently placed in supported accommodation after her discharge from psychiatric care in January 2024.
Her repeated applications for housing assistance were denied, with the council arguing that the Brexit withdrawal agreement did not extend housing rights to pre-settled citizens.
Justice Jay’s ruling emphasized that pre-settled status (PSS) does not grant immediate and unfettered access to all rights, but only confers visa-free immigration status.
He criticized the ambiguity of the EU-UK withdrawal agreement, stating, “In my judgment, the framers of Article 18(1) have created an entity whose fundamental characteristics, like the quantum particle, does not allow itself easily to be pinned down.”
Rulings Raises Concerns
These rulings have sparked significant concern among legal scholars and advocates.
Charlotte O’Brien, a law professor at the University of York, warned that the decisions could have severe real-life consequences, comparable to the Windrush scandal, for vulnerable EU citizens.
“It could mean that years and decades from now, people with settled status under the EUSS [EU Settlement Scheme] may find they have no proof that they ever had withdrawal agreement-based rights.”
Charlotte O’Brien
She recalled a parliamentary exchange in which then Home Secretary Sajid Javid justified the compulsory nature of the EUSS by saying, “In a word, Windrush.”
The aim was to prevent a situation where there was no documentary evidence of the right to reside. However, the recent court rulings have disrupted this intent.
Catherine Barnard, a professor of EU law at Cambridge University, expressed concern over the “confusion for frontline services” and the potential for further inconsistencies in the application of benefit rules.
She suggested that without government intervention, it could take years for a definitive ruling from the Supreme Court.
However, O’Brien noted that the Home Secretary could resolve the issue quickly through a statutory instrument, declaring that EU citizens with EUSS status fall within the scope of the withdrawal agreement.
A Home Office spokesperson indicated that a review might be forthcoming, stating, “EU citizens with pre-settled status can access benefits and services on the same basis as applied under free movement rules, as agreed by the last government.”
They emphasized the government’s commitment to the EUSS, which has provided millions of EU citizens and their families with the necessary immigration status to continue living and working in the UK.
As the situation unfolds, the future of the post-Brexit residency scheme remains uncertain, with legal experts and advocates closely monitoring developments and urging swift government action to prevent a repeat of past mistakes.
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