Automatic pre-settled status extension for EU citizens

The Government has announced some significant changes to the way it administers the EU Settlement Scheme (EUSS) in the wake of recent legal challenges.

Until recently, the Home Office was requiring those holding Pre-Settled Status to apply for Settled Status (similar to indefinite leave to remain) before their status expired (ie within five years). If they failed to do so, they risked losing their immigration status and becoming an overstayer. This effectively required EEA nationals in the UK to go through a ‘two-step’ process, applying first for Pre-Settled Status and then eventually for Settled Status.

In December 2022, the High Court ruling in Independent Monitoring Authority for the Citizens’ Rights Agreements v the Secretary of State for the Home Department [2022] EWHC 3274 concluded that the two-step requirement under the EU Settlement Scheme was unlawful. The Home Office did not appeal the judgement and agreed to implement the ruling. On 17 July 2023 new Immigration Rules were laid before Parliament, which will reflect the correct position under the law.

From September 2023, all Pre-Settled Status holders who have not applied for Settled Status before the expiration of the initial 5-year period will automatically have their status extended by two years. The rolling extension means that the status will never expire in practice. There will be no need to take any action to benefit from the extensions. The Home Office will notify each person directly once their status is extended. Employers will continue to use share codes to verify the immigration status and right to work of Pre-Settled Status holders.

The Home Office will also aim to grant Settled Status automatically to all individuals who meet the relevant criteria (ie five years’ residence in the UK, where there are no criminal convictions, and no absences of over 180 days in any 12-month period) and will use information cross-referenced from other Government departments (usually HMRC) in order to do so. Where the information available is insufficient to grant the status automatically, the Home Office will invite those who hold the Pre-Settled Status to apply manually for Settled Status.

Having Settled Status will remain a requirement for British Citizenship applications.

The implementation of the new Immigration Rules is a positive step towards protecting the rights of approximately 5.6 million people who currently benefit from the EUSS scheme. It also aims to reduce the strain on Home Office resources. However, detailed Guidance on how the changes will operate in practice has yet to be published.