The government’s Brexit scheme that means EU citizens must reapply for the right to live and work in the UK is unlawful, the High Court has ruled.

The EU Settlement Scheme opened in March 2019 and meant all EU citizens who wanted to remain in the UK after the Brexit transition period ended on 31 December 2020 had to apply for residency by June 2021.

If they had lived in the UK for a continuous five-year period at the time, they were given settled status but those who had been in the UK for less time were given pre-settled status.

EU citizens with pre-settled status have to reapply for settled status on reaching five years’ continuous residence in the UK or risk losing their residence rights, meaning they could not work, receive healthcare and education and apply for housing and benefits.

The Independent Monitoring Authority (IMA), a body set up to oversee citizens’ rights, took legal action against the Home Office in November as it argued the government is breaching the withdrawal agreement it made with the EU.

On Wednesday, Lord Justice Lane ruled the scheme is unlawful.

The ruling will affect more than 2.4 million people who currently have pre-settled status, the IMA said.

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The Home Office is intending to appeal the decision and said the status of EU citizens remains the same while that is taking place.

No EU citizen is currently affected as the five years they will have had to be in the UK before having to reapply for settled status does not expire until August 2023.

Those already with settled status do not have to reapply anyway so are not affected.

Home Office minister Lord Murray said: “EU citizens are our friends and neighbours, and we take our obligations to securing their rights in the UK very seriously.

“The EU Settlement Scheme goes above and beyond our obligations under the Withdrawal Agreement, protecting EU citizens’ rights and giving them a route to settlement in the UK.

“We are disappointed by this judgment, which we intend to appeal.”

Dr Kathryn Chamberlain, IMA chief executive said: “I am pleased that the judge has recognised the significant impact this issue could have had on the lives and livelihoods of citizens with pre-settled status in the UK.

“When we brought this judicial review, our intention was to provide clarity for citizens with pre-settled status, of which there were over 2.4 million when we filed this case in December 2021.

This judgment that the current system is unlawful provides that clarity. We will now liaise with the Home Office on the next steps.”

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