EU and other eligible citizens who were granted temporary residence rights in the UK post-Brexit will have their pre-settled status automatically extended by two years before it expires, the British government has announced.
From 2024, the Home Office also intends to carry out automated checks on pre-settled status holders to establish whether they still live in the UK and “convert as many … as possible to settled status once they are eligible for it, without them needing to make an application”.
These measures affect more than two million people who obtained pre-settled status, which granted temporary residence rights following the UK’s exit from the European Union.
“This will ensure that nobody loses their immigration status if they do not apply to switch from pre-settled to settled status,” the government said in a press release. But the announcement has raised many questions on how the changes will work in practice.
On August 2nd, representatives of the3million, a group campaigning for the rights of EU nationals in the UK, the Independent Monitoring Authority, which oversees the implementation of the Brexit agreements on citizens’ rights, and immigration lawyers shared available details at an online event. This is what we know so far.
What is pre-settled status?
Citizens from the EU, Norway, Iceland, Liechtenstein and Switzerland who were living in the UK before 31 December 2020 had to apply for a new residence status to secure their right to stay after the country’s withdrawal from the EU.
Under the Brexit agreement, they could obtain settled status (or ‘indefinite leave to remain’) if they had lived in the UK for 5 continuous years. Those with less than that would be granted pre-settled status, a temporary residence position, with the right to complete the 5-year period (in limited situations settled status can be obtained earlier).
The deadline to apply was 30 June 2021. However, the scheme is still open for late applicants and for family members who join EU/EEA citizens in the UK.
But how to upgrade from pre-settled to settled status? Under UK law, people had to submit a new application before their temporary residence expired. Failing to do so on time would turn them into unlawful residents, with the risk of losing all rights, including the ability to work, receive healthcare, education and social benefits, or even face deportation.
Why is the Home Office now automatically extending pre-settled status?
In December 2021, the Independent Monitoring Authority launched a legal challenge against the Home Office arguing these provisions were not in line with the withdrawal agreement.
As a result, in December 2022 the High Court ruled parts of the EU settlement scheme unlawful. The judge clarified that people with pre-settled status should not be denied permanent residence, nor lose any rights, if they do not make a second application to the EU settlement scheme. He also said that pre-settled status holders are entitled to reside permanently in the UK once they have lived in the country for the required 5 years.
The Home Office had therefore to review the rules. Immigration Minister Robert Jenrick announced on July 17th several changes to the scheme. These include an automatic two-year extension of pre-settled status and automated checks to upgrade to settled status for eligible people.
When will these changes become effective?
The Home Office said the pre-settled status extension will begin in September 2023, when the first grants were due to expire. Automated checks for the upgrade from pre-settled to settled status will start at some point in 2024.
Who will be affected by the extension?
Of the almost 7.1 million settled status applications that were concluded up to 31 March 2023, more than 2.7 million people were granted pre-settled status. The Home Office has not specified if all will be considered for an automatic extension and a later automatic upgrade.
It is not clear, for instance, whether these new rules will affect the pre-settled status of joining family members, nor if they will apply to people waiting for an outcome of their application or who were refused settled status in the past, or who are challenging a refusal.
Uncertainty also surrounds so-called Surinder Singh and Zambrano cases, which concern family members of UK citizens returning to the UK after having exercised free movement in the EU and carers of EU/EEA children.
Although they could apply to the EU settlement scheme under UK law, these cases were not covered by the withdrawal agreement, which was the reference of the High Court decision. The Home Office is therefore “not obliged by the judgment” to automatically extend their pre-settled status, says an explainer by citizens’ rights group the3million.
Will pre-settled status be extended more than once?
“We asked the Home Office whether there will be repeated two-year extensions of pre-settled status, but all we were told was that they will set out details in due course,” the3million added.
The point remains that under the High Court judgment someone’s pre-settled status cannot expire if the person continues to meet the requirements of the withdrawal agreement.
“That would mean that, in principle, the Home Office would have to continue to extend pre-settled status holders if they got to the end of the first two-year extension,” said at the online event Chris Benn, immigration lawyer at Seraphus. He added, however, that in the two years the Home Office might do “some more work to try to understand which people may no longer be living in the UK under the conditions of the withdrawal agreement – those people who may have broken their residence.”
He said it is “unlikely that the Home Office will continue to indefinitely just apply extensions to pre-settled status without engaging with the person … at some point down the line”.
How will the extension appear on the digital status?
The Home Office said the automated extension will be directly reflected in the person’s digital status, which has to be consulted by employers, landlords and other service providers to check the legal position of their staff, tenants or clients. People will be notified when this happens.
The3million say it is important to keep contact details, especially the email address, up to date on the UK Visa and Immigration (UKVI) account to be able to receive the Home Office communications.
How will automated checks be carried out from 2024?
When checks to automatically upgrade from pre-settled to settle status will begin in 2024, the Home Office will use the same approach adopted for settled status applications. They will cross-check the National Insurance (NI) number against HMRC (HM Revenue & Customs) and the Department for Work and Pensions records. If the Home Office will find evidence of five years residence though these databases, people will be offered an automatic upgrade of their status.
Otherwise, nothing will happen. The3million document explains: “Not being automatically upgraded is not the same as the Home Office saying you have not been in the UK for five years, it is only that the records do not show that you have been here for five years. You would separately be able to make an application for settled status under the EU Settlement Scheme when you can evidence five years’ residence”.
Lawyers understand that people who did not provide a National Insurance number when they applied for pre-settled status will not be able to receive the automatic upgrade.
It is not known whether border entry and exit records will be used to determine how long people with pre-settled status were absent from the country and whether they still qualify for settled status.
Also, there are no details of when these automatic checks will start and how frequently they will be carried out.
Can pre-settled status still be lost?
Pre-settled status can be lost because of criminal conduct or if a person is absent from the UK for more than 6 months in a 12-month period. Longer absences are possible for an ‘important reason’ or in relation to Covid-19.
Lawyers say that people breaking the continuity of residence will not become eligible for settled status, even if the pre-settled status is automatically extended. “That’s the sort of difficult part of all this because obviously people are going to receive extensions, but it may never help them to get to settled status in the end,” said Chris Benn.
The Home Office said in their press release that “safeguards will be in place to ensure that settled status is not wrongly granted.”
Will these measures protect everyone’s rights?
“When we brought this case, we wanted to make sure that no citizen unlawfully lost their right to reside in the UK, together with all associated rights. So, while we broadly welcome the commitment from the Home Office that no-one will lose their pre-settled status for failing to make a second application, we remain concerned about the lack of detail about how the plans will work in practice,” IMA Chief Executive, Dr Kathryn Chamberlain, commented.
Kezia Tobin, Head of Policy and Advocacy at the3million, said the group remains concerned at the Home Office “kicking the can down the road by two years”. “There is still a sense of insecurity for people,” she added.
“One of the things we are very concerned about is the fact that when somebody logs onto their view and prove system with pre-settled status, it will continue, at the moment at least, to show a status expiry date. So we are worried about what would happen to people who are nearing the point at which their pre-settled status would be due to expire before it has been extended, if for example they are applying for a job, because I think it’s fair to say that there’s a very real risk that prospective employers would find that off-putting and there’s a very real risk that people will end up being discriminated against on the basis of what is essentially a false expiry date on their status,” she added.
“It’s also not clear how compliant this is with the withdrawal agreement,” Christopher Desira, Director at Seraphus, wrote on LinkedIn.
“We strongly recommend that people apply for settled status as soon as they have five years of continuous residency, to secure proof of their rights,” the3million say
What to do in case of difficulties?
The Home Office resolution centre can help respond to questions about issues related to the EU settlement scheme.
The Home Office also funds several organisations across the UK, such as Settled and the Eastern European Resource Centre, to support vulnerable people with their settled status applications.
Depending on cases, campaigners recommend to seek legal advice. Decisions about the settled status can be challenged by appeal or administrative review.
The Independent Monitoring Authority also encourages anyone having difficulties accessing their rights to contact them.
Claudia Delpero, Europe Street News © all rights reserved
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