Post-Brexit rights: the difference between settled and pre-settled status explained by a lawyer

Damian Wawrzyniak, a Polish chef who has cooked for the royal family and at the London Olympics, and Richard Bertinet, who runs a cookery school in Bath, do not have only the profession in common. They both struggled to secure their full rights in the UK post-Brexit, despite having lived in the country for 15 and 31 years respectively.

When they applied for “settled status”, the scheme designed to secure the legal position of EU nationals, they were granted only “pre-settled status”, which guarantees fewer rights. Their cases attracted the attention of the media and were later resolved by supplying more documents to the Home Office. But many other people may face the same situation and receive less support.

EU nationals who have lived in the UK for at least five years have to apply for “settled status” to secure their right to stay after Brexit, while those who have been in the country for less than that can get “pre-settled status” and build up their five years. People granted pre-settled status have the same rights to work, study, receive healthcare and benefits as those with settled status. In other areas, however, the conditions differ, as shown in a table published by campaigning group the3million.

Christopher Desira, director at Seraphus, a legal firm advising the EU Commission and European Embassies in London, told Europe Street why it is important to get the right status.

What are the differences between settled and pre-settled status?

“Pre-settle status” is a temporary status, while “settled status” is permanent. The difference can affect vulnerable people. For example, to access benefits, there is a two-stage test: the first stage is to determine whether the person has habitual residence in the UK and the second the eligibility for benefits. People can prove they satisfy the first test with settled status. If they do not have it, the next question would be if they are exercising EU treaty rights, which will be difficult to prove for people who, for example, do not work or have been in sporadic employement or have been abandoned by the family or suffer from health conditions. This group of vulnerable people would not be able to access benefits without settled status.

Was this happening already with “permanent residence”, the scheme previously in place under EU rules?

Yes, but with settled status vulnerable people would have the opportunity to prove their residency. The problem is that there is no substantive assistance for all citizens who need help.

What are the other differences between the two legal positions?

The differences affect non-vulnerable people as well. After Brexit, free movement as we know it will end, but the essence of it will continue until the government changes the law to bring all EU citizens within the new immigration regime. Once the essence of free movement ends, it might become harder to access services, such as getting a mortgage, with pre-settled status, as that requires a permanent, not temporary status. 

There is also the issue of time spent outside the country. Settled status requires continuous residence for 5 years, with absences allowed for maximum 6 months in any 12-month period or once for 12 months for specific reasons. These rules remain in place for people with pre-settled status and if not complied with, settled status will later be refused. Only with settled status absences are allowed by up to 2 years [5 years if the withdrawal agreement is ratified]. Many people do not know this rule and might lose the status by accident, for example if they get a job that requires to travel a lot. This mirrors EU free movement rules, but before no one was checking and the 5-year clock could start again at any time to rebuild the right to permanent residence. Now Brexit stops that and we can no longer fix the absences.

Also, without a Brexit deal, people will not be able to challenge refusal decisions and will have to apply for another visa or, if they can’t, leave the country.

The Home Office has responded to media reporting saying that “not a single person had been refused” settled status and “nobody has been granted pre-settled status without first being offered the opportunity to submit evidence that they qualify for settled status.”

It sounds very simple but what that means is that the person is presented with the choice of taking pre-settled status or challenging the decision. The Home Office treats pre-settled status as a success even if this is a refusal of the status people wanted and they had right to. The system is built in such a way that forces in practice pre-settled status on people as it is the obligation of the person to understand how it works and act upon it. Many would ask if it is safe for them to challenge the Home Office. Someone who fears authority would suddenly be forced to engage with the system. So they may just accept pre-settled status even if they have the right to settled status. This is one of the biggest issues to this whole process.

What could be done differently?

When they apply for a visa, non-EU nationals get an immigration decision which is a letter telling them what they have applied for, what they are considered eligible for and, if refused, that they could apply for another visa. It is a long letter explaining the decision-making process and how to challenge the decision. There should be a similar letter for EU nationals. Under the EU settlement scheme, the Home Office does not say why settled status is refused.

Based on the Home Office data, since the scheme was put in place the proportion of people being granted pre-settled status rather than settled status has increased. As you noted, it was 32% during the testing phase last year and 42% in July. Why?

It is hard to tell as the system has been open to the public only for four months. Previously, there were test phases with groups of people expected to have easy cases, so it might be that the number of settled status granted in the beginning was inflated. When you have a scheme like this, usually people who are more likely to be accepted, more confident in the result and more able to get help apply early on. More complex applications will come up later. Probably we’ll see this trend. The problem is that we have to guess because the Home Office does not explain the decisions.

How to transform pre-settled into settled status?

People who have obtained pre-settled status will have to go back on the same application system and apply for settled status once they have completed the 5-year residene period. This means that the person needs to know that they have to re-apply and when, and re-evidence the full 5 years. The government announced 9 million GBP worth of grant funding to support vulnerable EU nationals in the application, but this is just a drop in ocean and it is only up until April next year, so vulnerable people might lack support when they have to re-apply later.

And what to do if given the wrong status?

Applicants have to follow the instructions on the app and scan and upload evidence of the 5-year residence in the country. If people have been present in the UK for at least 5 years, they must fight for settled status.

Responding to media reports, some experts said people given pre-settled status had just to send more documents. But people are upset because they do not know it or they just feel rejected. Isn’t there a communication issue here?

There is an information gap. I don’t blame the person who complains because the Home Office communication campaign is not good enough. It should clearly say that if you have 5 years residence you should get the settled status, and if less you should get pre-settled status. This week the Advertising Standards Authority (ASA) ruled the Home Office ad on settled status misleading. The Home Office is also communicating in online media, while it should put in place a mass media campaign on TV and everywhere else to get noticed by the majority of people, including the most vulnerable.

We also insist that EU nationals are given a physical residence card as a result of the process to avoid instances of discrimination. And a declaratory scheme, rather than an application, would solve all the problems we are talking about, including issues of ineligibility, late applications and wrong status.

The settled status scheme has been running since March and the deadline to apply is 31 December 2020 if the UK exits the EU without a deal, or 30 June 2021 if there is a deal.

Text and photo by Claudia Delpero © all rights reserved.

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