The Home Office announced a series of changes to the EU Settlement Scheme on 17 July 2023, which will take effect in September 2023. These include a 2 year extension of leave for holders of Pre-Settled Status and automatic conversions from Pre-Settled to Settled Status for eligible migrants.
These changes are a direct response to the High Court's decision in Independent Monitoring Authority v Secretary of State for the Home Department in December 2022 in which it was found that the EU Settlement Scheme as drafted was unlawful, in the context of the UK/EU Withdrawal Agreement.
This article summarises the key changes and their relevance to current holders of Pre-Settled Status.
Automatic 2 year extension of Pre-Settled Status
From September 2023, those who hold Pre-Settled Status, and have not yet applied for Settled Status, should be automatically granted a 2 year extension of their current leave. This automatic extension should take place 2 years before their current leave expires and will be reflected on their digital status.
The change, whilst a very welcome response to the uncertainty regarding Pre-Settled Status holders' future in the UK, still leaves a number of questions unanswered. This includes a lack of clarity as to whether the Home Office will be undertaking checks to see whether an individual has lost their Pre-Settled Status by spending 2 consecutive years outside the UK before automatically extending their status.
The question of whether an individual will be granted a further extension if they are not granted Settled Status during the 2 year automatic extension period also remains, although it seems likely this will be the case.
Automatic conversions to Settled Status
The Home Office also plans to automatically upgrade eligible Pre-settled Status holders to Settled Status once they have lived in the UK for a continuous 5 year period.
The Home Office have not yet confirmed how they will obtain the data necessary to establish that an individual meets the requirements for Settled Status (i.e. that they have not left the UK for more than 180 days per year, in the relevant 5 year period, and are of good character), although it appears data linked to the individual's National Insurance Number will be used here. Whether the Home Office will also be using entry and exit records is, as yet, another unanswered question.
It will still be open to holders of Pre-Settled Status to apply for Settled Status, where they are not automatically upgraded, if they meet the relevant criteria.
Those who currently hold Pre-Settled Status should regularly check their online status for any upgrades, particularly if they have extant leave of two years or less before the expiry of that status. If their status is not automatically upgraded at the expected point, after September 2023, we recommend seeking legal advice.
Additionally those who believe they are eligible for Settled Status, should check to see if this has been automatically granted at the expected point. If it has not, an application for Settled Status should be made as soon as possible, particularly if the individual hopes to naturalise as a British Citizen, as holding Settled Status for at least a year is a pre-requisite for naturalisation.
If you require any further advice on the EU Settlement Scheme, Boodle Hatfield's immigration experts would be happy to assist.