More changes to the EU Settlement Scheme

How did we get here?
 

A series of changes to the EU Settlement Scheme have resulted from the February 2023 High Court judgement in the Independent Monitoring Authority (IMA) case.  The judgement said that  in accordance with the Withdrawal Agreement when the UK left the EU, pre-settled status holders do not lose their residency right upon failure to make an application for settled status before their pre-settled status expires.

In an attempt to implement the High Court’s judgment, the Home Office published a Statement of changes in July 2023 which, among other things, confirmed that from September 2023 the Home Office would automatically grant a 2-year extension to pre-settled status holders shortly before they approach their current date of expiry.  This has benefited people who have not applied for settled status before the end of their 5 years in the UK with pre-settled status.

You can read more about the IMA High Court judgement and previous developments in our blogs here and here.

On 21 May 2024, the Home Office announced further changes that will impact pre-settled status holders in the UK, including a change in the duration of the automatic extension period from 2 to 5 years. The implications of the changes are discussed below.

Changes affecting employers/landlords and pre-settled status holders
 

No expiry dates on digital profiles
 

One of the changes the Home Office has announced is removing the pre-settled status expiry date from the digital profiles shown to third parties in the online checking services for Right to Work, Right to Rent and View and Prove.  This change has not yet been brought into force and the implementation date has not been announced.

This goes a long way in addressing concerns raised by the IMA in the High Court case. The initial approach of automatically applying a 2-year extension to pre-settled status holders may have continued to cause challenges, for example with employment or housing, due to the continued temporary nature of pre-settled status being visible to third parties when checking someone’s status. The judgment was clear, status should not expire providing the person continues to meet the underlying conditions.

No follow-up checks
 

Following an update on 21 June 2024 to the Home Office’s guide to right to work checks for employers there has been a removal of the requirement for employers and landlords to carry out follow-up checks once pre-settled status has been initially determined before the employment commenced.

These changes have also been reflected in an update to the landlord’s guide to right to rent checks. 

Changes affecting pre-settled status holders
 

Automatic extension to change from 2 to 5 years

What does this mean
 

As above, following the May 2024 announcement, automatic extensions to pre-settled status will be for 5 years, not 2.  This change has not yet been brought into force and the implementation date has not been announced.

The extension will be reflected in the person’s digital status and the Home Office will contact them directly to let them know this has been done. 

Note however, that even though the Home Office currently says they will grant these extensions automatically, later in 2024 there is a possibility that if they decide a person has broken their continuous residence, they will either (i) not grant the automatic extension and will move to take away the existing pre-settled status, or (ii) if someone’s status was mistakenly automatically extended, contact the person to start a process of removing their status, both subject to appeal rights.  (see further below).

What it does not mean:
 

It is important to note that the High Court judgement and these developments did not change anything regarding the eligibility rules for settled status. In order to qualify for settled status, someone will need to show they were continually resident in the UK for a 5-year period that began by 31 December 2020.

5 years’ “continuous residence” means that for 5 years in a row you’ve been in the UK, the Channel Islands or the Isle of Man for at least 6 months in any 12-month period. Therefore, if your continuous residence was broken at some point after 31 December 2020, this extension does not help to build up your qualifying residency period.

There are perhaps only a relatively small number of people who this 5-year extension might benefit in giving them the extra time they need to become eligible for settled status and could include for example those who had an excess absence before the end of 2020 or have excess Covid-related absences which paused their continuity of residence.

Pre-settled status to lapse after 5 years absence from the UK, not 2
 

The May 2024 Home Office press release followed The Immigration (Leave to Enter and Remain) (Amendment) Order 2024 which came into force on 21 May 2024. This order was made to amend the conditions under which a person’s pre-settled status will lapse if they are absent from the UK. Their leave will now lapse if they have been absent for more than 5 years, not 2 years which was previously the case.

However, importantly pre-settled status holders should note that the explanatory notes of the Order state that the above change “does not affect the scope for the Home Office to cancel or curtail pre-settled status where a person who has not acquired the right of permanent residence has ceased to remain eligible for pre-settled status by exceeding the absence(s) the Agreements permit. This scope will remain available by decision under Appendix EU, rather than by the lapsing of leave under the 2000 Order.”

Therefore, even though pre-settled status might not automatically lapse if the person has been absent for a prolonged period which does not exceed 5 years, they are still at risk of their status being cancelled on the grounds that they no longer meet the eligibility requirements for pre-settled status. The latter however, would come about by the Home Office deciding someone’s individual case and this would be subject to appeal rights.

Reminder on automation of settled status – good or bad?
 

The IMA High Court judgement also said that a second application should not be necessary to acquire settled status after five years.  This is because completing 5 years lawful residency in the UK means the person has acquired a right of permanent residence.

As a result, the Home Office has stated that sometime in 2024, it 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. It plans to do this using information about residency received directly from HMRC and DWP using the person’s national insurance number.

Whilst this might be a welcome step, it is currently unclear what the qualifying criteria will be for an automatic grant of settled status, for example particularly for those who have not been working in the UK with a national insurance number. The Home Office will also be making further checks of pre-settled status holders to establish their ongoing continuous residence in the UK. This might therefore put pre-settled status holders with high absences from the UK at risk of losing their status by cancellation or curtailment, as discussed above. The extent to which the Home Office will conduct such checks prior to issuing the 5-year extensions is currently unclear until guidance is released.

In the meantime, regardless of the Home Office’s plan to introduce automatic grants of settled status to some people, any pre-settled status holders eligible for settled status should apply as soon as possible.

What’s next?
 

A number of questions remain.  For example, the Home Office has so far avoided answering whether there will be repeated automatic extensions of pre-settled status in the future, stating that they will set out details in due course about what happens after the initial extension.  Equally, if someone has already received a 2-year automatic extension will this be ‘topped up’ to 5 years?  As the grassroots organisation for EU citizens the3million comments, the point of the High Court judgment is that someone’s pre-settled status cannot expire if they continue to meet the requirements of the Withdrawal Agreement, and therefore the Home Office is under an obligation to honour this.

The IMA has also confirmed that they will “continue to hold the Home Office to account” and monitor how the new measures are implemented as well as continuing to seek assurance on how the changes are made.

Pre-settled status holders must keep an eye out for further changes to the ever-changing EU Settlement Scheme and keep their contact details on their UKVI account up to date to make sure they receive any communication from the Home Office.

This blog was updated on 25 June 2024.

further information

If you have any queries in relation to the above issues or any other immigration matter, please contact Ilda de Sousa, Stavriana Alexandrou, Tim Richards or a member of the immigration team.

about the authors

Ilda is a partner in the immigration team at Kingsley Napley. She is a South African qualified attorney and a British qualified solicitor who joined the firm in January 2010. Ilda has more than ten years of UK corporate immigration law experience, managing large company clients as well as handling complex matters for individuals, British nationality applications, appeals, judicial reviews and applications under European Law including Brexit related advice.

Stavriana joined Kingsley Napley in August 2022, just a month after attending the work experience programme where she also spent a day in the immigration department. Now, she is part of the department’s Corporate Client team, assisting with a number of applications including skilled worker visas, indefinite leave to remain and naturalisation.

Tim joined the immigration team as a professional support lawyer in June 2019. He is a solicitor with extensive experience in corporate and private client immigration matters and is responsible for the immigration team’s knowledge management and development.