High Court refused permission

Following a hearing on 28 April 2021, the High Court has refused us permission to bring our claim for judicial review in relation to the Home Office’s policy to provide only a digital proof of status to EU citizens granted leave under the EU Settlement Scheme.

The full judgment is available here.

We argued that the digital-only status policy is unlawful because it will disproportionately disadvantage individuals who are digitally excluded, in particular older, disabled and Roma people.

The judge held that the claim is ‘premature’ because EU citizens will only be required to rely on the digital only system from 1 July 2021, after the end of the ‘grace period’. Until then, by law (if not necessarily in practice), they can continue to prove their status as they previously have, by showing their passport. The judge held that it will only be possible to determine whether the system will disproportionately disadvantage the relevant groups after the grace period has ended and the digital system is fully operational.

We argued that the system is already being required to be used in certain circumstance and, in any event, will predictably cause significant disadvantages for people and that these should be prevented as soon as possible. The judge did not agree that the issue should be dealt with by the courts at this stage, but left open the possibility that the same claim could succeed in the future once more evidence is available.

This is a disappointing outcome. Nonetheless, despite not winning in court, we think that bringing the claim was worthwhile. We have done everything we can to support vulnerable EU citizens and, in doing so, we have put the Home Office on notice that we are willing to litigate on their behalf when it is necessary to do so. This will hold the Home Office’s feet to the fire and ensure due attention is paid to the effects of the scheme following the end of the grace period.

In addition, we think that some positive changes have been made as a result of the claim. In particular, during the course of the litigation, the Home Office has revealed details of a telephone helpline that will be available to help people to access their status or, if they are unable to access it even with assistance, send proof of status directly to third parties such as employers and landlords. This is an important concession which should enable at least some people who cannot use the digital-only system independently to prove their status when required to do so (though we believe that there are many who will also not be able to access the helpline). The helpline does not appear to have been referred to publicly prior to us commencing this claim. We believe there is a very strong likelihood that its development was in response to the litigation. The Home Office has committed to publish guidance about the helpline before the end of the grace period on 30 June 2021.

We will continue to support and campaign for the option of a physical backup document for all EU citizens who wish to have one. We intend to closely monitor how the digital-only system is operating in practice following the end of the grace period. If, as we fear, the system does not work effectively and causes disadvantages to EU citizens, we will consider all options including further litigation.

If you experience any problems viewing or proving your status, please report them to us using our ‘report it’ tool: www.the3million.org.uk/report-it. This could be vital evidence for any future claim.

Many thanks for your continued support in relation to our work on this issue.

Unfortunately, after considering the paperwork we sent, the court did not give us permission to proceed with our case. We have requested a hearing with a judge so our legal team can explain our case a second time. 

The hearing date has been set for 28 April 2021. We should find out during the hearing whether the judge will give us the permission we need to proceed with the case fully. We will be represented by Chris Buttler QC during this permission hearing. 

The Government refused to listen to our repeated requests to provide a physical document as a backup to digital status. As such, we filed a claim at the High Court on 18 February to challenge the policy on the basis that it discriminates against some of the most vulnerable members of our society who are unable to access and prove their status using the online system. Our case is supported by specialist organisations representing older people, disabled people and people from the Roma community. 

The Government now has three weeks to submit its initial response to our claim. After that, a judge will decide whether to grant us ‘permission’ to proceed to trial. We have asked for an expedited timetable to ensure that our case is heard before the end of the grace period on 30 June 2021, when those who are unable to prove their status will be exposed to the full force of the hostile environment.

We are hugely grateful to our supporters for the donations we have received so far. Without your support we would not be able to bring this important challenge.

In connection with the claim, we have applied to the Court for a ‘costs capping order’ to limit our liability to pay the Government’s costs if we lose. Without a costs cap, the3million would potentially be liable for a huge Government legal bill. This risk would threaten our very existence and make it impossible for us to continue with the claim. We have asked the Court to set the cap at the amount that we raise through crowdfunding, but, the more money we raise, the better the chances are that we will be awarded a favourable cost cap. Please keep giving what you can to help us overturn this discriminatory policy.