In the last few months there have been a number of significant changes to the EU Settlement Scheme (EUSS) and the changes will carry on into next year as well.
Here we take a look over a timeline of EUSS changes this year in July, August, September and October as well as the plans for next year.
July 2023 – naturalisation as a British citizen guidance updated
In July an update was made to the naturalisation guidance to reflect the effect of the IMA case judgment (discussed further below) for applicants who are exercising rights under the Withdrawal Agreement (WA). As such, where a person has obtained pre-settled status and accrued five years’ residence but has not applied for settled status, at that point they will still be considered to be free from immigration time restrictions for the purposes of a naturalisation application.
As they are relying on the WA, these applicants will need to evidence that they were exercising a Treaty right (such as by being employed, self-employed, studying or economically self-sufficient) for at least five years.
August 2023 – changes to late applications guidance
Unfortunately, the prediction we made in our recent blog was accurate as on 9 August 2023 the EUSS ‘validity’ rules were updated to include late applications and the new guidance shows a stricter approach. The guidance gives only limited examples of reasonable grounds for delay such as having a serious medical condition, being in an abusive or controlling relationship and serving a prison sentence. It further requires that evidence, preferably “objectively verifiable” evidence, be provided in support. The guidance notes that even if someone was significantly unwell around the time of the 30 June 2021 deadline they will need to justify why they have not applied in the intervening period.
We are aware of more cases being rejected as invalid. From the Home Office’s perspective, we understand there was concern about spurious applications to buy time and receive a Certificate of Application while the application was pending. However, the stricter approach alludes towards an intention to restricting the number of late applications made under the EUSS. Unfortunately, there are many genuine, but late, applications which will get caught by the change.
Also in August, a change meant that some types of applicant can no longer apply to the EUSS. The EUSS included broader categories such as family members of Qualifying British Citizens ("Surinder Singh" cases) and Zambrano carers who are eligible under Appendix EU but are not covered by the WA; hence, not “WA beneficiaries”. Effective 8 August 2023, the Home Office closed these routes for new applications.
September 2023 – automatic extension of pre-settled status begins
Some seven months later, the Home Office has announced the following steps to implement the High Court’s judgment in R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department  EWHC 3274 (Admin).
As discussed in our previous blog, the High Court held that pre-settled status holders do not lose their residency right upon failure to make a second application for settled status in accordance with Article 13(4) of the WA. Residence rights under Article 13 exist by automatic operation of law and as such the person is entitled to reside in the UK as long as the relevant limitations and conditions are satisfied.
In the July statement of changes, the Home Office confirmed that it will make arrangements for pre-settled status to be automatically extended for a 2-year period before it has expired. The extension will be reflected in the person’s digital status, and they should expect to be notified directly. This extension would apply to all pre-settled status holders who meet the conditions. What the exact conditions are is currently uncertain but it would be expected to include not falling foul of the suitability (including criminality) requirements and not having been absent from the UK for more than 2 years. An automated Home Office email was circulated to current EUSS holders explaining the recent changes. It states:
“Pre-settled status holders will be automatically granted this 2-year extension before their status was originally due to expire if they have not yet obtained settled status. They do not need to contact the Home Office about this extension. It will be automatically reflected in their digital status and they will be notified once it has been applied.”
The position at the end of the 2-year period is currently unclear; however, a pre-settled status holder will not lose their rights of residence as long as the relevant conditions are satisfied. The Home Office will most likely extend the pre-settled status for another 2 years or upgrade it to settled status (see further below) if the conditions are met. Pre-settled status can be lost if there is an absence longer than 2 years or if the grounds for refusal provisions apply.
October 2023 – option for Administrative Review removed
Whilst all applicants want their application to be approved, sometimes they will run into difficulties. A September statement of changes to the Immigration Rules revealed that from 5 October 2023 it is no longer possible to apply for Administrative Review (AR). AR is a request for the application to be reviewed where there is an error in law – for example where the Immigration Rules or UKVI guidance and policy are applied incorrectly.
The new rule appears to apply retrospectively in that any application which is decided on or after 5 October will not have an option to go for AR. So, this will include any applications submitted before 5 October.
Consequently, the only avenues to challenge a refusal are through the more costly and time-consuming options to appeal to the Tribunal or apply for judicial review. This could be seen as another measure to restrict the number of applications made under the EUSS.
During 2024 - automation of settled status to begin
In the IMA case, the High Court also held that a second application should not be necessary to acquire settled status after the five years have lapsed in accordance with Article 18(1) of the WA.
While it was addressed in a press release rather than in the July statement of changes, the Home Office intends to automatically convert as many eligible pre-settled status holders as possible to settled status during 2024 (the exact start date is currently unknown). It plans to do this using the information about residency received directly from HMRC and DWP using the person’s national insurance number. The Home Office email mentioned above also includes information on the automation:
“Automated checks of pre-settled status holders against government-held information would check for example their ongoing continuous residence in the UK.”
While good news, the announced process disadvantages people with a complete 5-year continuous residence but insufficient HMRC/DWP records, such as the homeless and other vulnerable individuals. The Home Office may invite this group to apply for settled status by providing documentary evidence of their residency, or give a 2-year pre-settled status extension.
For anyone hoping to automatically be given settled status, another important point to consider is the requirement for continuous residence over the 5-year qualifying period. It is likely that once their continuous residence is broken, someone with pre-settled status will become ineligible for settled status. To be a WA beneficiary, the key condition under the WA is to be resident before 31 December 2020. However, if continuous residence is broken (for example by being outside the UK for 2 years), the holder will cease to be a WA beneficiary. We are yet to see how the Home Office will conduct these checks, including in relation to investigating absences from the UK, before automatically granting settled status. Conceivably, a holder of pre-settled status whose continuous residence is broken, and is therefore ineligible for settled status, may also not receive their 2-year pre-settled status extension.