Millions of EU citizens and their family members holding pre-settled status could benefit from a landmark High Court judgement. Solicitor Carla Mirallas Martinez explores the judgement and provides advice for those due to make an application for settled status.
The UK’s position on the EU Settlement Scheme
Pre-settled status, also known as Limited Leave to Remain, is a temporary form of stay in the UK. It is valid for five years and is granted to EU nationals as well as their family members under the EU Settlement Scheme, this is the mechanism through which EU, EEA and Swiss citizens and their family members resident in the UK prior to 31 December 2020 have been able to apply to secure their status and rights in the UK. You can find more information about the scheme here.
The UK’s position has been that pre-settled status cannot generally be extended and is not upgraded automatically. Therefore, a subsequent application for settled status (officially called ‘Indefinite Leave to Remain’) must be made before its expiry date – this ‘upgrade’ only being possible once the applicant has completed five years continuous residence in the UK. Those who fail to make this application are at risk of losing their right to remain in the UK, including their right to work, rent and apply for benefits and housing. In addition, they may be caught by the Home Office’s hostile environment policies in certain situations.
The pre-settled status of millions of EU nationals and their family members which was granted around the time the EU Settlement Scheme (‘EUSS’) opened in August 2018 is due to expire in the second half of 2023.
High Court finds that the UK’s position is contrary to the Withdrawal Agreement
In a welcome development, the UK will have to change its position.
The High Court has recently ruled on a judicial review application brought by the Independent Monitoring Authority (IMA) against the Home Office. The European Commission and the grassroot organisation the3million supported the judicial review.
In Independent Monitoring Authority v Secretary of State for the Home Department  EWHC 3274 (Admin), handed down on 21 December 2022, Mr Justice Lane ruled that the EU settlement Scheme was unlawful and in contradiction to the Withdrawal Agreement between the UK and the EU. He determined that even though the UK was able to implement a system requiring individuals to apply for an immigration status by a specific deadline, the Withdrawal Agreement only requires one application for residence status to be made where the host state has adopted a constitutive system.
In brief, Mr Justice Lane ruled that:
- Applicants granted pre-settled status should not lose their rights of residence if they do not make an application for settled status. This was on the basis that the wording of article 13(4) of the Withdrawal Agreement makes it clear that a right of residence can only be lost in very specific circumstances. The expiry of a status was not among them.
- The consequence of the above is that settled status rights accrue automatically, once the conditions of such status have been satisfied by the individual, without the need of a second application.
There can be no doubt that this ruling will have far-reaching consequences. This is especially so since the government has confirmed that there will be no appeal.
Whilst details on exactly what changes will be made to the current system are yet to be provided – we will provide updates as soon as further information is known – we strongly advise that individuals with pre-settled status continue to make a further application for settled status. This should be done as soon as applicants are eligible and before their pre-settled status expires so that their rights of residence in the UK remain protected in the event that the appeal is upheld.
*Since the date this article was published in January 2023, further details on how the judgment will be implemented have been announced. You can find further information in our updated article here.
Key considerations when making an application for settled status
The main considerations when making an application for settled status under the current rules are as follows:
The most important requirement is that the applicant must have five years continuous residence in the UK which has not been broken by absences of more than 6 months in any twelve-month period. There are some exceptions to this rule. If an applicant has been outside the UK for two years in that five-year period, their pre-settled status will have lapsed under the UK’s rules and they will not be entitled to apply for settled status.
The five years period starts:
- For EU nationals: on the day their continuous residence in the UK started (which must be prior to 31 December 2020 and not on the day they were granted pre-settled status).
- For close family members (I.e., partners, dependents parents/grandparents or children): either the day they arrived in the UK or when they became a family member, whichever was later. For extended family members (the day they were granted a family permit under the EUSS or an EEA residence card under the EEA Regulations 2016).
No supervening event has occurred:
Applicants need to show that since completing their most recent five-year qualifying period, no ‘supervening event’ has occurred. This means absences from the UK for a period of more than five consecutive years since they last completed a continuous qualifying period of five years or been made subject of an exclusion, removal, or deportation order (unless it has been set aside/revoked).
There are mandatory and discretionary grounds for refusal. A check will be made on the criminality and security databases within the UK and overseas. Applicants considered serious or persistent criminals or those who pose a security threat will be refused. There will be a difference in the way crimes committed before 31 December 2020 and after are looked at. Those committed after that date will be treated more harshly, in accordance with current UK domestic deportation law.
Digital application process:
Applications are generally submitted online after an ID verification check has been completed using the ‘EU Exit: ID Document Check’ app (available on Android and iPhone 7 or above). Alternatively, applications can be submitted in paper and send by post, in certain circumstances.
The application will be linked to an email address and a telephone number which should be logged into the digital status once granted.
There is no application fee.
Once a valid application has been made, applicants will receive a Certificate of Application which will confirm their right to live, work, study and use the NHS in the UK while the application is pending. This can be accessed online, and they can rely on it to prove immigration status in the UK.
Applicants will need evidence of their identity (valid ID/BRP). If their pre-settled was based on their relationship to a family member, they will also need evidence of the relationship. If they do not have evidence of identity, alternative evidence may be accepted in some situations.
Applicants may also need to provide evidence of their continuous residence. An automatic check will be made with HMRC or DWP, and where government data is lacking, applicants will be given the opportunity to upload additional evidence of residence.
Application processing times:
In accordance with the current Home Office guidance, it takes around five working days for complete applications to be processed if no further information is required, but it can take up to a month. In other circumstances it may take longer than a month (i.e., if more information is needed is the application is made by post etc.).
If an applicant is not eligible:
Applicants who are not eligible for settled status because they have spent more than six months outside the UK in any 12-month period may be able to re-apply for pre-settled status if their absence took place before 31 December 2020 and they were back in the UK by 31 December 2020. Otherwise, they may need to apply for a visa to stay in the UK under a different immigration route before their pre-settled status expires.
This article was originally published in January 2023 and has been updated in light of the government’s decision not to appeal. It is accurate as of the new date of publication shown.
How we can help
We are experienced in preparing all type of applications, particularly complex, under the EU Settlement Scheme and ensure a successful outcome. We will provide expert guidance and assistance to you throughout the process.
If you have any questions, we can provide some initial information on a no-obligation basis.
Please contact us or complete our enquiry form below.