The Immigration Rules and guidance for the EU Settlement Scheme (EUSS) will need to be amended in line with a significant recent High Court judgment. Among other things, employers should expect revised guidance on right to work in the United Kingdom for individuals with pre-settled status who fail to make a further application under the EUSS.

Campaign group the3million has confirmed that the Home Office is not intending to challenge recent findings of the High Court that certain elements of the EUSS are not in line with citizens' rights under the UK-EU Withdrawal Agreement (WA).

The EUSS is the means chosen by the United Kingdom to discharge its obligations under the WA to protect the residence rights of European Economic Area and Swiss citizens living in the United Kingdom by 31 December 2020, and their family members. The legality of the scheme was questioned because those with pre-settled status must make a further application under the scheme before the expiry of their five-year permission, otherwise they lose their right to live, work, rent and access free healthcare in the United Kingdom.

In a successful case brought by the Independent Monitoring Authority for the Citizens' Rights Agreement, the High Court held that:

  • a person with pre-settled status under the EUSS does not lose their residence rights under the WA if they fail to make a second application before the five-year expiry date of that permission; and
  • a person with pre-settled status who acquires a right of permanent residence under the WA after five years of lawful residence in the United Kingdom does not lose this if they fail to apply for and obtain settled status under the EUSS.

To avoid practical disruption to EUSS participants, amendments to the Immigration Rules and Home Office guidance will need to be in place before August 2023, which is when the earliest grants of pre-settled status are due to expire.

Along with other guidance, it is anticipated that updates to the Home Office's right to work check guidance for employers will need to be made to cover the situation where a person's pre-settled status has expired.

Until the rules and guidance are updated, individuals who become eligible for settled status after five years' lawful residence in the United Kingdom are encouraged to apply for it as this is the most straightforward way of evidencing their rights.

For further information on this topic please contact Andrew Osborne, Clara Le Chevallier or Pip Hague at Lewis Silkin by telephone (+44 20 7074 8000‚Äč) or email ([email protected], [email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.