On 17 July 2023, the Home Office announced changes to the EU Settlement Scheme ("EUSS").
Under the new rules, which are due to be implemented from September 2023, any person in the UK who has Pre-Settled Status under the EUSS will have their status automatically extended by two years before it expires, without needing to make an application to the Home Office
In addition, from 2024, the Home Office plans to automatically convert Pre-Settled Status to Settled Status (also known as "Permanent Residency", "Settlement" or Indefinite Leave to remain), for those who are eligible.
These changes are the result of the High Court ruling in R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department [2022] EWHC 3274 (Admin). The case was about the interpretation of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, (commonly referred to as the Withdrawal Agreement (the ''WA'')).
In this case, the Court ruled that people with Pre-Settled Status must not lose their residence rights just because they do not make a second application to the EUSS. The Court also ruled that those granted Pre-Settled Status are entitled to reside permanently in the UK once they have continuously resided in the UK for a five-year period.
Background to the EUSS
The EUSS was put in place in response to the UK leaving the European Union. Before Brexit, EEA nationals and their family members who wanted to live in the UK could do so under EU "Free Movement" laws. This meant that EEA nationals (and their eligible family members) could live, work or study in the UK without a visa.
After Brexit and the end to Free Movement, the UK Government implemented the EUSS to enable EEA nationals and their eligible family members to protect their right to stay in the UK.
Under the EUSS, EEA nationals and their eligible family members who had been in the UK for less than five years could apply for "Pre-Settled Status". This gave them permission to remain in the UK for five years. EEA nationals and their family members who had been in the UK continuously for five years or more, could apply for Settled Status, which gave them a permanent right to remain in the UK.
According to the latest published statistics, up to 31 March 2023, there have been more than 7.2 million applications under the EUSS. As of 31 March 2023, an estimated 5.6 million people had obtained status under the EUSS – Media factsheet: EU Settlement Scheme – Home Office in the media (blog.gov.uk).
Under the EUSS, any person granted Pre-Settled Status has an end date for their permission to remain in the UK. Until the Government announcement on 17 July 2023, the position was that applicants must, before their Pre-Settled status expires, make a second application for Settled Status, or switch to another immigration category, in order to remain in the UK. If they did not do so, they would become overstayers in the UK, and lose their rights to work, rent, study, receive healthcare on the NHS, and apply for benefits. As well as these serious consequences, they would ultimately be exposed to the risk of deportation or detention.
The High Court ruling
In 2022, the Independent Monitoring Authority ("IMA"), which is a watchdog set up to monitor and protect the rights of EU citizens and their family members in the UK, brought a case against the Home Office on the basis that it was unlawful for EEA citizens and their family members to lose rights conferred upon them before Brexit, which were protected by the WA. The High Court found in favour of the IMA on 21 December 2022, ruling that individuals should not lose their right to remain in the UK if they fail to make a second application to the EUSS and that Settled Status rights should accrue automatically should the individual meet the conditions for such status.
The Secretary of State for the Home Office has confirmed that she will not challenge the ruling of the High Court, resulting in the new immigration rules laid before parliament on 17 July 2023, and accompanying statement in which the Home Office confirms:
¾ …From September 2023 people with pre-settled status under the EU Settlement Scheme (EUSS) will automatically have their status extended by 2 years before it expires if they have not obtained settled status.
¾ The process will be automated by the Home Office and reflected in the person’s digital status. They will be notified of the extension directly. This will ensure that nobody loses their immigration status if they do not apply to switch from pre-settled to settled status.
¾ The Home Office also intends to take steps to automatically convert as many eligible pre-settled status holders as possible to settled status once they are eligible for it, without them needing to make an application. During 2024, automated checks of pre-settled status will establish their ongoing continuous residence in the UK. Safeguards will be in place to ensure that settled status is not wrongly granted.
A positive change, but uncertainty remains
In relation to Pre-Settled Status, whilst is seems that every individual with Pre-Settled Status will receive an automatic two-year extension, a strict reading of the Government's wording could imply that there may be circumstances in which someone might lose their immigration status for reasons other than not making a second application to the EUSS. It is also unclear if the Home Office will be granting a one-off two-year extension, or if they will be repeatedly extending for two-year periods. This is especially relevant in the context of people who have broken their continuous residence for reasons that are not due to COVID or other compelling or compassionate reasons.
In relation to the automatic grant of Settled Status, it is as yet unclear what the Home Office's process will be, and the nature of the checks that will be undertaken. It is likely that checks will be made against National Insurance contributions and other government-held information. This, in turn, may mean that those who applied for Pre-Settled Status without a National Insurance Number will need to apply for Settled Status themselves in any event and will not be eligible for an automatic grant. Therefore, despite these positive changes, it is possible that issues may arise in relation to the automatic extension of Pre-Settled Status and there is a risk that refusals of Settled Status will be handed down where the automated checks do not return sufficient or accurate information.
Next steps
The Home Office is expected to produce further details about the changes in due course.
In the meantime, applicants should continue to apply through the EUSS for Settled Status as soon as they are eligible to do so to enable them to present their own evidence of their continuous residence in the UK to the Home Office.
Additionally, all EUSS status holders should continue to keep their passport and identity information updated through the EUSS online account and be alert to correspondence from the Home Office in relation to their EUSS status.