On 17 July 2023 and 7 September 2023 new Statements of Changes to the Immigration Rules were published. Several changes relate to the EU Settlement Scheme (‘EUSS’). We are highlighting in this article some of the key developments.
Automatic pre-settled status extension and upgrade to settled status
From September 2023, individuals with pre-settled status under the EUSS will automatically have their status extended by two years before it expires, if they have not already acquired settled status. This process will be automated by the Home Office and the extension will be reflected in the individual’s digital status via their UKVI account. Individuals will be notified of the extension by the Home Office directly by email. Once the extension has been granted, the individual’s pre-settled status rights will continue.
The Home Office also intends to take steps during 2024 to automatically upgrade pre-settled status holders to full settled status. Those affected will no longer need to make a second application, provided that automated government checks (HRMC and DWP) can establish their ongoing continuous residence in the UK. If the Home Office cannot make that decision based on the available data, those with pre-settled status are likely to be invited to apply for settled status, if they wish to do so.
The above changes have been incorporated into the Immigration Rules for the EUSS in Appendix EU as a direct result of the High Court judgment in Independent Monitoring Authority for the Citizens’ Rights Agreements v the Secretary of State for the Home Department [2022] EWHC 3274 (Admin) (21 December 2022). This judgment found that the EUSS was operating unlawfully. The Court determined that individuals must not lose their residence rights because they failed to make a second application under the EUSS before their pre-settled status expired. You can find further information about the judgment here.
These changes are a welcome development for those who do not apply to upgrade their pre-settled status before it expires. Their rights may be protected whilst the extension is in force. However, at this stage, it remains unclear what the Home Office plans to do following, or even during, the temporary extension with those individuals who may not qualify for settled status. For example, if they have broken their continuity of residence due to their absences.
Practical steps
Given the uncertainty on how this new system would work and the potential for issues relating to the right to work, right to rent, etc, we suggest that individuals with pre-settled status take the following steps:
- Those who have been living continuously in the UK for at least five years should apply for settled status, as soon as they are eligible to do so. They do not have to wait for the extension. The five-year period usually begins the day the individual started their continuous residence in the UK, not the day they were granted pre-settled status. Different rules may apply to family members.
- Pre-settled status holders must not allow their pre-settled status to expire without making another application, unless they have been notified by the Home Office that their leave has been automatically extended.
- Pre-settled status holders must keep their online digital status up-to-date, especially if they have obtained a new passport or changed their email address since obtaining this status.
- Pre-settled status holders should maintain residence records to demonstrate their continuous residence in the UK, in case automated government records do not contain sufficient data to show their eligibility for settled status under the EUSS.
Please note that the above changes do not affect individuals who already have settled status or have since naturalised as British citizens.
Restrictive approach to late applications
Stricter rules have been introduced regarding late applications under the EUSS. From 9 August 2023, what constitutes a “reasonable excuse” for making a late application is now a validity requirement instead of an eligibility requirement. This means that whether an applicant has a “reasonable excuse” for a late application is assessed as a preliminary issue and supersedes the application’s merits. If the Home Office rejects the application as invalid, there will be no right of appeal or administrative review.
This change means that individuals must now prove to the Home Office, on the balance of probabilities, and based on the information and objectively verifiable evidence, the reasons for their late application, which is a much more restrictive approach. The more time that has elapsed since the relevant deadline, the harder this will be. A non-exhaustive list of reasonable grounds is provided in the Home Office guidance.
The above change has an important practical implication for an individual’s right to work. Prior to the change, applicants were issued a “Certificate of Application” (CoA) at the point of submission, which they could use to prove their rights such as their right to work or rent. However, the Home Office will now no longer issue a CoA until it has decided on the validity criteria, meaning that applicants may face significant delays in their ability to evidence these rights.
EUSS Family Permit route closes for Surinder Singh and Zambrano applicants
Another significant change is that on 8 August 2023, the EUSS Family Permit route closed to family members of qualifying British citizens returning to the UK having exercised free movement rights in the EEA or Switzerland (“Surinder Singh” cases). It also closed to primary carers of British citizens (“Zambrano” cases). It is worth noting that these routes will remain open to those who are already on them.
Those granted an EUSS Family Permit on the basis of a Surinder Singh or Zambrano application made by 8 August 2023 will also be able to come to the UK and apply to the EU Settlement Scheme.
Changes in the definition of “dependent relative”
The definition of “dependent relative” under Appendix EU has been amended to provide for the adult child of a durable partner. They will now continue to qualify if previously granted leave in this capacity aged under 18.
Right of administrative review removed
One of the more significant but less welcome changes is that from 5 October 2023, the right to an administrative review in relation to EUSS refusal and cancellation decisions made on or after the above-mentioned date has been removed. However, in line with the Citizens’ Rights Agreements (CRAs), the right of appeal against those decisions will be maintained.
Clarification of the existing policy position regarding dependency
Lastly, some minor technical changes are being made to clarify the existing policy position that evidence of dependency of individuals who have been granted pre-settled status as a dependent parent or child does not need to be provided in further applications under Appendix EU.
Personal immigration services: How we can help
Our solicitors are experienced in preparing all types of immigration applications, particularly complex ones, under the EU Settlement Scheme. We will draw on this expertise to provide in-depth guidance and assistance to you throughout the process, maximising your chances of a successful outcome. If you require legal assistance, please contact us or use the enquiry form below.
