The UK government has announced changes to the EU Settlement Scheme from September 2023 which will affect those living in the UK with pre-settled status. The changes have been made following the case of R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v the Secretary of State for the Home Department [2022] in which the High Court held, in summary, that:

• by imposing a requirement on pre-settled status holders to apply for settled status after 5 years or lose their right of residence, the Home Office was acting unlawfully; and
• those granted pre-settled status are entitled to stay permanently in the UK once they have lived here for the required five-year period, even if they do not apply for settled status.

What is the EU Settlement Scheme?

The EU Settlement Scheme was introduced to protect the rights of EU, EEA and Swiss citizens and their family members after the UK’s departure from the European Union. Under the Scheme, individuals living in the UK as at 31 December 2020 could apply for status to enable them to continue living and working in the UK beyond the application deadline of 30 June 2021. Applicants were granted settled status if the Home Office was satisfied that they had been living in the UK for a continuous 5 years or more at the time of applying, or pre-settled status (which lasts for 5 years) if they had been in the UK for less than 5 years. Until now, pre-settled status holders have been obliged to apply for settled status prior to the expiry of their pre-settled status or lose their right to live in the UK.

What are the changes to the EU Settlement Scheme?

From September 2023, pre-settled status holders will automatically have their status extended by two years before it expires, on a rolling basis, assuming they have already not obtained settled status.  The Home Office says that there will be an automated process to update each pre-settled status holder’s digital status to reflect the extension and affected individuals will be notified directly. This means that those pre-settled status will effectively retain their status indefinitely without having to take any further action.

Additionally, the Home Office has said that from 2024 it aims to grant settled status automatically to as many pre-settled status holders as possible who meet the relevant criteria (i.e. 5 years’ continuous residence in the UK and no criminal convictions), using available data such as National Insurance records, without the need for a separate application. If the Home Office cannot make a decision based on the information available to it, pre-settled status holders will be able to apply for settled status if they want to or they can simply retain their pre-settled status which will then continue to be renewed every two years. It remains to be seen how this will work in practice – the Home Office’s roll-out of digital status and online right to work checks has not been what you might call glitch-free.  

What is the impact on employers of pre-settled status holders?

The changes will be particularly helpful for employers who have been concerned about losing critical staff on the expiry of their pre-settled status.

Employers should continue to carry out right to work checks (and follow-up checks prior to status expiry) in the usual way and to maintain accurate records, including expiry dates for pre-settled status holders, to ensure that they always have valid permission to work in the UK (not least because we do not know whether or how the Home Office’s ‘automatic’ extension process will work in practice). Employers are required to do right to work checks on those with settled status but as this status has no expiry, they do not need to carry out follow-up checks.