From September 2023, Pre-Settled Status holders who have not yet obtained Settled Status will have their Pre-Settled Status extended for two years.
Background
Following the decision of the United Kingdom to withdraw from the EU, the Home Office introduced the EU Settlement Scheme on 30 March 2019, to allow EEA nationals and their family members living in the UK to apply for UK immigration status. Those who had already lived in the UK for 5 continuous years were granted Settled Status, whilst those who had lived in the UK for less than 5 years were granted Pre-Settled Status (valid for 5 years). It was expected that those who were granted Pre-Settled Status could then apply for Settled Status, once they had completed a period of 5-years’ continuous residence in the UK.
The continuous residence requirement for Settled Status dictates that the applicant should not have been absent from the UK for more than 180 days in any 12 months during the 5-year qualifying period.
The Immigration Rules did not previously allow for Pre-Settled Status to be extended. It meant that, where a Pre-Settled Status holder did not meet the requirements for Settled Status, they would either need to switch into a different immigration category or leave the UK prior to the expiry of their Pre-Settled Status. This included, for example, those who had been absent from the UK longer than permitted during the 5-year qualifying period.
High Court Case
In December 2022, the High Court ruled in a landmark case that the EU Settlement Scheme breached the Withdrawal Agreement, i.e. the Treaty which protects the rights of EEA nationals who were in the UK prior to Brexit. The Court found that:
- Pre-settled Status holders should not lose their rights to reside in the UK, if they do not apply/qualify for Settled Status;
- Pre-Settled Status holders should obtain Settled Status without the need for a further application.
Change to the Immigration Rules
The recent Statement of Changes to the Immigration Rules implements the decision of the High Court to bring the EU Settlement Scheme in line with the Withdrawal Agreement.
The Home Office has announced that from September 2023, those who have not yet qualified for Settled Status before the expiry of their Pre-Settled Status will automatically have their Pre-Settled Status extended by another two years. This extension will be made automatically on their online portal. At present, this extension appears to only occur once, meaning that Pre-Settled Status holders should ensure that they satisfy the continuous residence requirement before their 2-year extension period expires.
The Home Office has announced that they will begin reviewing their records to grant Settled Status to Pre-Settled Status holders when they fulfil the requirements, without the need for making a further application. This does not necessarily mean that Pre-Settled Status holders are prevented from making a Settled Status application.
We expect the Home Office to publish further guidance in September 2023. Be sure to follow our blogs for further updates.
How Gherson can assist
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