EU citizens with temporary post-Brexit residence rights to get automatic 5-year extension

The UK government has announced the automatic extension from 2 to 5 years of temporary residence rights granted to EU citizens under the EU withdrawal agreement.

The decision follows a judgment by the High Court, in December 2022, which clarified that the residence rights of a person with pre-settled status under the Brexit agreement should not expire because the holder does not make a second application to the scheme, as long as the person continues to meet the necessary conditions.

The change, announced on 21 May, will affect some 1.9 million people who have temporary rights in the UK following the country’s withdrawal from the European Union.

Pre-settled status

Under the Brexit agreement, citizens from the EU, Norway, Iceland, Liechtenstein and Switzerland who were living in the UK before 31 December 2020 had to apply for the EU settlement scheme to secure their right to stay.

If they had lived in the UK for 5 continuous years, they could obtain settled status (or ‘indefinite leave to remain’). For shorter periods of residence, they would get pre-settled status, a temporary legal position with the right to complete the 5 years.

Under UK law, however, people had to submit a new application for settled status before their temporary residence expired or they would lose their rights.

Legal action

Given the risk for millions of people to become illegally resident in the country, the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA), the body which oversees the correct application of the EU-UK deal by UK publication authorities, launched a legal action against such measures.

In December 2022, the High Court ruled the arrangements unlawful. The judgment also said that those who have lived in the UK for 5 years and have continued to meet the relevant conditions (including not having been absent for too long) should be automatically entitled to permanent residence rights.

In response, the Home Office announced in July 2023 that, before its expiry, pre-settled status would be automatically extended by 2 years, giving people time to obtain full status.

But the IMA noted that this could still “potentially adversely impact” the rights of people affected, for example with employers or landlords, as the pre-settled status expiry date remained visible on the profiles.

After months of discussion, the Home Office has now granted a longer automatic extension.

Deleted from the profiles

In addition, the UK government said the pre-settled status expiry date will be removed from the digital profile of the holder, so it will no longer be visible to employers, landlords and other parties who need to check the legal position of the person they employ or provide services to.

A further change is that, if the person remains in the same employment or tenancy agreement, employers, landlords and letting agents will not have to conduct a right to work or rent check at the pre-settled status expiry.

Miranda Biddle, Chief Executive of the Independent Monitoring Authority, welcomed new measures “as a pragmatic way of ensuring the principles of the judgment are upheld”.

EU citizens’ rights group the3million, who also called for the change, said: “We have seen people offered temporary contracts and refused tenancies, just because their status was seen as due to expire. In practice, their status was going to be automatically extended, but the employer or landlord could not know this. Removing expiry dates solves this part of the problem.”

Automatic conversion

More changes to the way system work are expected this year, as the Home Office intends to start automatically converting pre-settled to settled status for eligible people.

The Home Office plans to verify continuous residence in the UK carrying out automated checks on pre-settled status holders using the National Insurance number, HMRC (HM Revenue & Customs) and Department for Work and Pensions records.

People with five years of residence evidence will be automatically granted settled status without the need to make an application.

While helping many, this change will not solve the problem of a second application for all settled-status holders. Professor Catherine Barnard and Research Associate Fiona Costello from Cambridge University wrote last year that workers in precarious or informal jobs, children and vulnerable individuals will not benefit of the automatic upgrade.

The3million also warned that “if the Home Office decides a person has broken their continuous residence, they will not grant the automatic extension and will move to take away the existing pre-settled status, subject to appeal rights.”

Pre-settled status holders will be notified by the Home Office when changes are made.

“It is very important to keep your contact details on your digital status up to date so that you receive communication from the Home Office,” the3million says.

The group also “strongly recommend” people to apply for settled status as soon as they have reached 5 years of continuous residency, as there are major differences between pre-settled and settled status.

Settled status holders can apply for British citizenship, be away from the UK for 5 years before losing their rights under the withdrawal agreement (instead of 6 months in a 12-month period with pre-settled status) and access welfare benefits on the same basis as a British citizen.

In addition, children born after a parent with settled status, they are automatically British. Otherwise, they can be registered as British once the parent with pre-settled status acquires permanent residence.

According to Home Office data, as of 31 December 2023, 5.7 million people had secured their rights in the UK through the EU settlement scheme, of which almost 2 million holding pre-settled status and 3.7 million holding settled status.

Claudia Delpero, Europe Street News © all rights reserved

Photo by Johan Mouchet on Unsplash

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