EU Settlement Scheme: Automatic Extensions and Further Developments Following High Court's Unlawful Ruling

A fundamental component of the EU Settlement scheme, introduced for European nationals and their families to safeguard their UK residence post-Brexit, was found to be unlawful in December 2022. The judgment from Independent Monitoring Authority v Secretary of State for the Home Department ruled that the Home Office’s interpretation of the scheme contradicted the terms of the Withdrawal Agreement and failed to protect the rights of EU citizens.

Why is this important now?

The EU Settlement scheme was first launched on a trial basis in Northwest England for students and staff from three Liverpool universities and 12 National Health Service Trusts on 28 August 2018.

Those granted with Pre-Settled status during the initial pilot phase were issued with Leave to Remain for five years, during which time an application to upgrade their status to Settled status would have been required. The process of converting from Pre-Settled to Settled status should be actioned prior to Pre-Settled status expiring. The process for this initial cohort will start in August 2023. The decision from the High Court case, however, deemed the dual registration process to be unlawful, and it has now been addressed in the July 2023 Statement of Changes.    

The questions posed and the Court’s judgment

A useful starting point is identifying the two key questions the Court considered.

First, does the Withdrawal Agreement allow the Home Office to remove residency rights for those who fail to make a further application for Settled status? Second, is the acquisition of Indefinite Leave to Remain (Settled status) contingent on the making of a second application, or can this be issued automatically once five years of UK residence is achieved?

The Court concluded that:

• Applicants granted Pre-Settled status should not lose their right of residence, amongst other rights, if they do not make an application for Settled status. This was in accordance with Article 13(4) of the Withdrawal Agreement, which indicates that the host State must not impose any limitations or conditions for obtaining, retaining or losing residence rights, other than in limited circumstances. The failure to upgrade to Settled status prior to Pre-Settled status expiring was not a limited circumstance.
• Where a second application has not been made, those holding Pre-Settled status should not be denied Indefinite Leave to Remain once the lawful residency period has been fulfilled. This is in line with the EU Commission’s view that residence status is written in the singular in the Withdrawal Agreement Article 18(1), meaning all applicants should benefit from the same rights, irrespective of having two classes of people: Pre-Settled and Settled.

What is the impact and how has the decision been implemented?

The government chose not to appeal the High Court’s decision, and changes to the Immigration Rules have now been laid in Parliament confirming developments to the EU Settlement scheme.

These developments confirm that from September 2023, those holding Pre-Settled status will automatically have their status extended before it lapses for a further two years, without the need for an application. This will apply to those who have not acquired Settled status at the point their Pre-Settled status expires, and the automatic renewal will be reflected through their digital immigration account, which is visible online.

It is important to note, however, that an automatic renewal is not an Indefinite Leave to Remain. This means that an expiration date will still exist, and valid lawful residence must continue to be observed in order to be eligible for Settled status.

This brings us to another announcement from the Home Office, which is the intention to take active steps to automatically upgrade those with Pre-Settled status into Settled status once eligible. This process will begin in 2024 and will use available online records (i.e., National Insurance information through the Department for Work and Pensions) to confirm continuous UK residence and have Settled status reflected online following successful automated checks.

There is an element of welcome news here. Residency rights are protected if a Settled status application is not made before Pre-Settled status lapses. This will help those in vulnerable categories such as the elderly, children and victims of domestic abuse. It also removes the administrative hurdle of making an application in the first place, which can be difficult for those in vulnerable groups. Having said that, there still seems to be an incentive towards having individuals make their own applications without complete reliance on automated systems. For instance, for those where automatic verification of residence cannot be established for upgrading to Settled status.   

There has also been speculation regarding the two immigration routes not associated with the Withdrawal Agreement, Surinder Singh and Zambrano, which has allowed applicants of qualifying British citizens to benefit from the EU Settlement scheme. For these groups of people, the route will close on 8 August 2023, and British nationals seeking to sponsor foreign relatives or carers should consider the usual family routes, in line with other British nationals, which have more stringent requirements.

Looking ahead

The caselaw from December is not the first time the EU Settlement scheme has been challenged. When first introduced, applicants incurred a small fee when submitting their applications. This was later reversed, and applications were made free of charge. Refunds were also processed for those who had paid.

Coming up on five years later, it seems that the scheme is still creating confusion. The latest figures show that more than two million people have Pre-Settled status in the UK and understandably will want to know what to do next.

Our advice is that it is still prudent to make an in-time Settled status application where you can, in order to have this status documented online and for peace of mind. It will also be useful when proving rights to work to potential employers or for accessing benefits without objections.

Having said that, safeguards will now be in place to ensure no disruption to UK residence and other fundamental rights should you choose not to do so. In addition, these developments also serve as a useful reminder to be checking UKVI account information for automatic changes once enhancements to the scheme have been rolled out, as well as updating account details with new passports, so Pre-Settled or Settled status can be linked to current and correct passports for travel purposes.

Need to know more?

With the first pool of people potentially impacted from next month, this is timely news, and we shall continue to monitor the situation as things progress. For questions regarding these changes and their impacts, please reach out to Senior Associate Russell Hodges at [email protected].

This blog was published on 18 July 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please visit our dedicated COVID-19 site, subscribe to our alerts and follow us on LinkedIn, Twitter, Facebook and Instagram.