Pre-Settled Status

January 22

Pre-Settled Status

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OTB Legal

Pre-settled Status

All of the provisions relating to pre-settled and settled status applications made under the EU Settlement Scheme are found in Appendix EU of the Immigration Rules. Those who have seen this Appendix will know that it is not an easy read and getting the exact information you need can be quite daunting.  

This blog aims to provide a wider context to the whole EUSS Settlement Scheme, but also to address the issues that pre-settled status holders are encountering in the current political climate.

Situation before Brexit 

Prior to the UK exiting the European Union (“EU”), every EU national had the freedom to come to the UK, so long as they fell within one of five categories. These categories were:

  • Workers
  • Students
  • Self-employed
  • Self-sufficient
  • Jobseekers

Usually when an EU national came into the UK, they could apply for a residence card for themselves or their family members (which was valid for 5 years). In most cases, the residence card was not a necessity, but it allowed an EU national or their family member to prove their lawful status in the UK. An EU national or their family member would continue to remain lawfully present as long as the EU national continued to exercise their treaty rights by fitting within one of the 5 categories above.

Once an EU national had completed 5 years in the UK and they could evidence that they had been exercising their treaty rights for a period of 5 years, they obtained a right of ‘permanent residence’. They could confirm their permanent residence status by making an application to the Home Office and obtaining a ‘document certifying permanent residence’. Again, it was not a necessity for an EU national or their family member to make this application. The permanent residence was conferred automatically at the time the EU national, or their family member had been exercising treaty rights for a continuous period of 5 years. However, it was often beneficial, particularly for non-EU family members, to apply for a document proving their right of permanent residence, so they could evidence their lawful status in the UK.

At the time of Brexit, there were millions of EU nationals and their family members who had been residing in the UK for a number of years and had a permanent right of residence under the old rules. However, despite having a right of ‘permanent residence’, they suddenly found themselves having to make an application to the Home Office under the EU Settlement Scheme in order to be able to carry on living in the UK lawfully.

The two-tier system post Brexit

As part of the negotiations with the EU during Brexit, the UK government agreed the rights of the EU nationals (and their non-EU family members) who have been resident in the UK by 31 December 2020 would be protected. This led to the government devising a new system called the ‘EU Settlement Scheme’ where all EU nationals in the UK who had been resident in the UK by 31 December 2020 had to make an application by 30 June 2021 (although there are some provisions for making a late application). The application system was designed to be user friendly and could be done through an ‘app’ on your phone if you were an EU national. The Home Office created two tiers of leave that could be granted to EU nationals (and their non-EU family member). The first being ‘settled status’ and the second being ‘pre-settled status’.

Those who could evidence that they had been resident in the UK for a continuous period of 5 years prior to 31 December 2020 were granted settled status right away. If an EU national had a permanent residence card issued to them before, then they could simply rely on this to be given settled status. However, in cases where the EU national had not previously been issued with the permanent residence card, they had to submit evidence which clearly demonstrated that they had been resident in the UK for a continuous period of 5 years before 31 December 2020. The onus was on the applicant to prove that they had been living in the UK for 5 years.

The Home Office were generous in their approach to these applications as the applicants were only required to prove that they simply were residing in the UK as opposed to evidencing that they were exercising their treaty rights.

Applicants who had not been resident in the UK for a continuous period of 5 years by 31 December 2020 or those who struggled to provide documents covering a period of 5 years residence by 31 December 2020 were issued with ‘pre-settled status’.

The Difference between ‘settled status’ and ‘pre-settled status’

Settled status is the equivalent of being granted ‘indefinite leave to remain’ under the Immigration Rules. It means that there are no limits or restrictions on the applicant; they are free to come and go from the UK and work as they see fit. Settled status also made an EU national eligible for naturalisation depending on their individual circumstances. Settled status could only be lost in very limited circumstances, such as where the EU national commits a serious criminal offence or they leave the UK for a continuous period of 5 years.

In comparison, pre-settled status is granted for a period of 5 years and is therefore “limited”. At the end of the 5 years period, the EU national was required to make a settled status application (although there have been some developments on this recently as will be discussed below). The application for settled status can also be made sooner if the 5 years period is completed before the pre-settled status expires. Another important distinction is that pre-settled status automatically lapses if the individual leaves the UK for a continuous period of 2 years.

Furthermore, any person with an absence of more than 6 months would also normally not be able to apply for settled status at the end of their 5-year period. However, there are provisions within Appendix EU that provide for exceptions to one absence of up to 12 months, where the EU national had left the UK for an important reason and could not come back either due to Covid-19 or other compelling circumstances. In these circumstances, the application is very much at the decision maker’s discretion.

Therefore, being able to attain settled status is crucial in securing your rights in the UK in the long-term.

The case of Independent Monitoring Authority v Secretary of State for the Home Department [2022] EWHC 3274 (Admin)

Those with pre-settled had to make an application to the Home Office for settled status within the 5 year period their pre-settled was valid for. If pre-settled status was allowed to expire, then the individual stood to lose their rights which had been guaranteed under their pre-settled status, meaning they would be required to leave the UK. This requirement posed a significant risk to those who have particular vulnerabilities and may not realise or have the ability to make the fresh application before the expiry of their pre-settled status. It was estimated that by 30 September 2021, approximately 2.2 million people had been issued with pre-settled status. Therefore, the number of people liable to be impacted by this requirement was quite significant.

This issue was considered in the case of IMA v SSHD before Justice Lane. The IMA argued that under the Withdrawal Agreement (“WA”), while the Home Office may have required all EU nationals and their non-EU family members to make new applications following Brexit, there was no requirement for those issued with pre-settled status to then make a second application for settled status. Justice Lane emphasised that the grave consequences of the limited leave under pre-settled status coming to an end cannot be brushed aside as merely procedural matters. Despite the Home Office’s assurances that they will support vulnerable individuals with pre-settled status to make the settled status application, Justice Lane found these assurances did not allow him to:

construe Article 13(4) so as to run counter to the ordinary meaning of the words, seen in the light of the object and purpose of the WA. Not only is limited leave in these circumstances a “limitation” on retaining residence rights; the requirement to apply for further leave is itself “a condition” for retaining such rights. Both are precluded by Article 13(4).

Therefore, the Home Office’s condition that anyone with pre-settled status had to make a fresh application for settled status was deemed unlawful. The affect of this is that pre-settled status in principle should not expire simply because a subsequent settled status application has not been made. Does this also mean that pre-settled therefore cannot be ‘limited’ in its nature, even though it is granted for a period of 5-years?

The Home Office’s approach post IMA v SSHD

It is important to note that the Home Office did not appeal this decision. Instead, they have adopted the approach of extending an individual’s existing pre-settled status by another 2 years. This has been done by sending automated emails directly to individuals whose pre-settled status will shortly be expiring. However, extending the pre-settled status by 2 years does not seem to have completely resolved the issue. It merely seems to have put off the requirement to apply for settled status and not actually resolved any of the underlying issues. The Home Office’s stance still appears to be that an application might be required to attain settled status.  

The Home Office have also announced that in some cases, those holding pre-settled status will be conferred settled status automatically. On the face of it, this appears to be a welcome change in the Home Office’s approach, however, it is not without its problems. The Home Office have been silent on how this approach will actually work in practice. Some of the questions that arise immediately include:

  • What sort of data will the Home Office consider to determine if someone has been residing in the UK for 5 years;
  • Will the Home Office reconsider an individual for automatic conferment of settled status where they previously might not have qualified;
  • What would disqualify someone from being conferred settled status automatically? Will they be provided with an opportunity to remedy this by submitting evidence;

Again, it appears that anyone who is not automatically conferred settled status might still have to make a further application for settled status upon the expiry of their pre-settled status (even if it has been extended for a further 2 years). However, this would be in direct contradiction to IMA v SSHD. Therefore, a lot more information is expected of the Home Office and the extension by 2 years to pre-settled status simply appears to be a delaying tactic while they try to come up with a substantive solution to implement the decision of IMA v SSHD.  

What should you do to guarantee your settled status

It is unclear at present how the Home Office will meet their obligations and apply the ruling of IMA v SSHD. Further information should hopefully be available in future. However, if a person wants to secure their status currently and they qualify for settled status, they are still able to apply and be granted settled status at this stage.

This would be particularly important where you might have some complications, such as absences that may impact your right to settled status.

At OTB, we have extensive experience in successfully preparing particularly complex applications under the EUSS Settlement Scheme. We provide advice on the type of evidence that will be needed for your application and how any complexities can be addressed and guide through the whole process from start to finish.

To see how we may be to help you, you are encouraged to book a free a no-obligation consultation with one of our experts.

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