On 21 May 2024, the Home Office announced yet more changes to the EU Settlement Scheme. These changes will impact those who currently hold pre-settled status in the UK. The announcement includes significant changes to the automatic extensions of pre-settled status which may be granted to individuals by the Home Office. Changes have also been made to the conditions under which a person's pre-settled status will lapse if they are absent from the UK. This article will outline the changes that have been announced, and the implications for those who currently hold pre-settled status in the UK.
Automatic Extensions of Pre-Settled Status
In September 2023, changes were made to Appendix EU of the Immigration Rules to allow an individual who holds pre-settled status under the EU Settlement Scheme to have that leave extended automatically by the Secretary of State, without having to make an application. This reflected the judgement in the case of Independent Monitoring Authority for the Citizens' Rights Agreements v the Secretary of State for the Home Department [2022] EWHC 3274 (Admin), where it was found that an individual's right to reside under under the Withdrawal and Separation Agreements does not expire simply by failing to have made an application under the EU Settlement Scheme.
The government announcement accompanying the change stated that:
"The process will be automated by the Home Office and reflected in the person's digital status. They will be notified of the extension directly. This will ensure that nobody loses their immigration status if they do not apply to switch from pre-settled to settled status."
Following this change, the Independent Monitoring Authority for the Citizens' Rights Agreements (IMA) raised concerns with the Home Office about these measures. The IMA has summarised the matters it raised as follows:
"In the IMA's view, the Home Office's initial approach of automatically applying a two-year extension to pre-settled status holders shortly before they approach their current date of expiry did not go far enough to address the judgment. This was because it could potentially adversely impact their rights.
The IMA was concerned this position may have continued to cause challenges for citizens, for example with employment or housing, due to the continued temporary nature of pre settled status being visible to third parties when checking a citizens' status. The judgment was clear, status should not expire providing the person continues to meet the underlying conditions."
In a further announcement published on 21 May 2024, the Home Office outlined the steps that they would take to address these concerns. The first change is that the duration of pre-settled status extensions will be 5 years, rather than 2 years. The Home Office will also remove the pre-settled status expiry date from the digital profiles of pre-settled status holders which appear as part of the Right to Work, Right to Rent and View and Prove your Status checks. The Home Office has also outlined that employers, landlords and letting agents will not be required to conduct a further right to work or rent check where the individual remains in their employment or as part of that tenancy agreement.
The right to work guidance for employers published in February 2024 confirmed the existence of an automatic extension, but also confirmed that employers were still required to conduct a right to work check and retain a result for those who held pre-settled status. The guidance indicated that follow-up checks on an individual who held pre-settled status should be made in the last month of their original period of leave to ensure that the extension is reflected in their status. In light of the Home Office's announcement, changes to this guidance are likely.
Do These Extensions Apply to Everyone With Pre-settled Status?
In principle, and on the basis of a strict reading of the rules, automatic extensions only apply to those who continue to meet the eligibility requirements for pre-settled status (except for the requirements of dependency which apply to children, dependent parents or dependent relatives). One of these eligibility requirements is that an individual has completed a 'continuous qualifying period' of residence in the UK which began before 31 December 2020. As readers may be aware, a 'continuous qualifying period' of residence is broken through absences from the UK of more than 6 months in any 12 month period, unless one of a limited number of exceptions apply. This means that those who have, since being granted pre-settled status, been absent from the UK for more than 6 months in any 12 month period, may not be eligible for an automatic extension. However, the extent to which the Home Office will conduct such checks prior to issuing extensions remains unclear.
Eligibility for Settled Status After an Extension
It is also important for readers to be aware that the changes that the Home Office are putting in place to allow individuals to extend their pre-settled status do not change the requirements that need to be met in order for an individual to be granted settled status. These include a requirement that an individual has completed a continuous qualifying period of residence of at least 5 years that commenced before 31 December 2020. Therefore, unless an exception applies, if an individual has broken their continuity of residence since 31 December 2020, their qualifying period for settled status cannot be completed by relying on an extension. While further extensions might be issued, these will not allow such individuals to obtain settled status (under the current rules); and in any case, the Home Office have stated that any announcements about future extensions will be made in due course.
The Home Office has also previously announced its intentions to automatically convert the status of those who are eligible from pre-settled to settled status. Their announcement in September 2023 confirmed that:
The Home Office also intends to take steps to automatically convert as many eligible pre-settled status holders as possible to settled status once they are eligible for it, without them needing to make an application. During 2024, automated checks of pre-settled status will establish their ongoing continuous residence in the UK. Safeguards will be in place to ensure that settled status is not wrongly granted.
However, such automatic upgrades would remain subject to the eligibility criteria mentioned above; and until further details are released, those who are eligible should submit applications for settled status with detailed evidence of their residence in the UK.
Changes to When Pre-settled Status Will Lapse
The announcement of 21 May 2024 was also accompanied by a change to the conditions under which a person's pre-settled status will lapse if they are absent from the UK. Previously, a person's pre-settled status would lapse if they were absent from the UK for a period of more than 2 years (without returning to the UK during that time). However, The Immigration (Leave to Enter and Remain) (Amendment) Order 2024, which came into force on 21 May 2024, confirms that pre-settled status will not lapse unless someone has been absent from the UK for 5 years without returning to the UK (or 4 years for Swiss nationals and their family members). This brings the provisions for pre-settled status in line with those which already existed for settled status.
Despite this change, holders of pre-settled status should keep in mind the residence requirements which continue to apply to their leave, as discussed earlier in this article. Although their status may not lapse, an individual who has spent such an extended period of time outside of the UK would be at risk of their status being cancelled on the grounds that they no longer meet the eligibility requirements for pre-settled status.
Conclusion
Although it is encouraging that the Home Office has taken steps in response to the IMA's recommendations, the full details of the way in which the automatic extension scheme will be implemented remains to be seen. Individuals who are concerned about their current status, or their status in the future, should continue to seek legal advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.