The Government has broken its promise to EU citizens living in the UK, leaving hundreds of thousands without a concrete guarantee that they will be able to stay. 

Sajid Javid the Home Secretary, Caroline Nokes the Immigration Minister, and Brandon Lewis now the Chairman of the Conservative Party have all promised that any EU national resident in the UK would get settled status and be allowed to remain, unless they were a 'serious criminal'. The new Immigration Rules Sajid Javid brought into force this August require Home Office caseworkers to refuse settled status to people who haven't committed any criminal offences at all, let alone serious ones. 

Despite promises that EU citizens would not be required to show that they had private health insurance (a controversial and potentially illegal requirement the UK imposes on EU students and other non-working EU citizens) or where otherwise 'exercising treaty rights', many who weren't able to prove that they were exercising treaty rights will be denied settled status, and will become undocumented, subject the Hostile Environment and the destitution and suffering it brings. The Rules say Home Office caseworkers must deny settled status to anyone “subject to a removal decision under the EEA Regulations on the grounds of their non-exercise or misuse of rights under Directive 2004/38/EC”. 

This has nothing to do with criminality as non-exercise of treaty rights could include anyone who can't prove that they have sufficiently comprehensive private health insurance or who can't prove they're in genuine and effective work. 

Who is affected? 

First, anyone who has had a removal decision for non-exercise of treaty rights will definitely be denied settled status. These tend to be particularly vulnerable EU citizens, including victims of trafficking, who have ended up sleeping rough. The Home Office has really ramped up its attempts to detain, remove and deport EU nationals in recent years. Only very recently the courts found that the Home Office was engaging in widespread illegality in its efforts to deport EU citizens. 

Second, the hundreds of thousands of students and other non-workers who are very unlikely to have comprehensive private health insurance, because the UK never made it clear that it was required, are at risk. If the Home Office issues a removal decision against them, as it is able to do under UK law, before they are granted settled status, they will be barred from getting it. 

Please see JCWI's briefing for the full details. 

 EU15 also requires automatic refusal of anyone with a deportation order against them or exclusion order. This means there is no assessment of proportionality, nor is it consistent with the draft Withdrawal Agreement, which requires the Government to carry out a current assessment of risk posed by individuals. 

What will we do with the funds?

We are asking for donations because we at JCWI have brought this claim in our own name. That means that we run the risk of paying the Home Office's costs if we lose the case, which could be very significant for us as a small charity with limited funds. Your donations will help us pursue this case by limiting the financial risk that we are taking. 

Additional funds will be used to meet some of the costs of our solicitors who are another small charity (Public Law Project) and who are doing this case on a no win no fee basis. If we are unsuccessful, they  and our barristers will have put in substantial resources working on this case for free. If possible, we think it's right that we should be able to pay them. 

Details of the legal challenge

We have instructed the Public Law Project to act for us in this matter, and our barristers are Alison Pickup of PLP, and Martin Westgate of Doughty Street Chambers. We have been advised that our prospects of success are good. 

Our challenge is made on public law grounds. We are saying that first of all these Immigration Rules, specifically provision EU15 is unlawful for the following reasons:

• The Rules are internally inconsistent because the intent of the scheme is to grant status to all EU nationals who aren't serious criminals irrespective of whether or not they can prove they are exercising Treaty rights, and yet EU15(c) denies settled status to some people who cannot prove they are exercising Treaty rights;
• There is no consideration of proportionality or of individual facts and decisions under EU15 because anyone who has had a removal, deportation, or exclusion order made against them automatically is refused settled status;
• The Rules are inconsistent with the draft Withdrawal Agreement because EU15 requires automatic refusal of settled status without a current assessment of whether someone still poses a  sufficiently serious threat to the public or whether the decision is proportionate. 

If the court does not find the Rules to be unlawful, we are also arguing that the Guidance is lacking in transparency and clarity and therefore unlawful. In addition the Guidance is so misleading that EU nationals will be unable to make an informed decision about whether to apply for Settled Status.