Those in the UK with Pre-Settled Status under the EU Settlement Scheme should not have to make a second application to preserve their rights to reside in the UK and will have their status automatically extended by the Home Office following a High Court ruling.
High Court Ruling
In December 2022, the High Court ruled in IMA v SSHD 2022 that the Government’s imposition of the requirement for individuals to convert their Pre-Settled Status to Settled Status was in breach of the Withdrawal Agreement. With Pre-Settled Status being a temporary form of status valid for five years and Settled Status a form of permanent residence achievable after five years’ continuous residence, failure to make the appropriate application risks the individual’s ongoing right to reside and work in the UK. The High Court ruled that expiry dates were not considered in the Withdrawal Agreement and therefore could not be imposed, and that only one residence application was provided for in the Withdrawal Agreement as a requirement for EEA nationals and their qualifying family members living in the UK prior to Brexit.
With the Home Office declining to appeal the ruling, it must now address the fact that Settled Status is a fact of law as opposed to a grant from an application, with the rights which go along with such permanent residence. This is not dissimilar to how the old EEA Regulations 2016 used to operate.
Automatic Extension of Pre-Settled Status
Consequently, the Home Office has started automatically extending Pre-Settled Status by two years for all who hold this status. This automatic extension process is operating as follows:
The extension applies to all holders of Pre-Settled Status. No separate checks are being done to differentiate who will receive the extension.
The extension is being notified by email and through online UKVI accounts where individuals can view their immigration status (the EUSS being fully digital).
The Home Office is completing the extensions on a monthly basis for those whose Pre-Settled Status expires the following month. Therefore, if an individual’s Pre-Settled Status expires in January 2024, their status should be automatically extended at the start of December 2023. If their status does not expire for several months or more, they will not see any extension to their expiry date until nearer the time.
It is not clear for how long the Home Office will conduct the automatic extensions, and further information is expected as to how the scheme will continue beyond 2024.
This process is not without its issues. Some individuals have reported that employers are looking to terminate their employment where an expiry date is upcoming and do not appreciate that an automatic extension will be given. There have also been instances where an extension has not been given – but this can be challenged. There is a resolution centre available for anyone adversely affected.
Automatic Upgrading to Settled Status
The Home Office is expected to begin automatically converting the status of those on Pre-Settled Status over to Settled Status, in line with the ruling, during the course of next year. Further information on this process is yet to be published but what we know so far is:
This will apply to those covered by the Withdrawal Agreement only – meaning those with Pre-Settled Status on the basis of Surinder Singh (family members of qualifying British citizens) and Zambrano (primary carers of British citizens) may not be included. We await confirmation on this. (It is noted that individuals in these sub-routes have been unable to apply to the EU Settlement Scheme since 8 August 2023 in any event.)
Initially, National Insurance records will be used to verify five years continuous residence and enable the status to be upgraded.
If there are insufficient National Insurance records, or if the individual has excessive absences from the UK, an application with evidence of residence and / or reasons for the absences may need to be made (but remember that Pre-Settled Status should be / have been extended by two years as well).
Where individuals have completed five years continuous residence and hold Pre-Settled Status, they are still able to make an application for Settled Status (whether the five years consists of time before they held Pre-Settled Status or not). They do not need to wait for the Home Office to do this for them.
Those individuals with Pre-Settled Status must maintain their continuous residence in the UK in order to be eligible for Settled Status after five years (i.e., no more than six months absences in any 12-month period, or more than two years in the five year period). If the continuous residence is broken through excessive absences, without their being a good reason, they may not be eligible for Settled Status or to extend their Pre-Settled Status. Any automatic extension of Pre-Settled Status may be cancelled. Retaining evidence of residence and presence in the UK is therefore crucial for those with Pre-Settled Status.
It is essential that all those with status under the EU Settlement Scheme keep their contact details up to date in their UKVI account to ensure they receive any updates from the Home Office.
This article is not intended to be used as legal advice. Should any of these updates be relevant to you, please seek expert legal advice from a regulated immigration practitioner. You can send us an enquiry to immigration@laytons.com.
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