By Jasmine Theilgaard – Immigration Barrister
On 21 Might 2024, the House Workplace introduced but extra modifications to the EU Settlement Scheme. These modifications will affect those that at the moment maintain pre-settled status within the UK. The announcement consists of vital modifications to the automated extensions of pre-settled standing which can be granted to people by the House Workplace. Modifications have additionally been made to the situations below which an individual’s pre-settled standing will lapse if they’re absent from the UK. This text will define the modifications which have been introduced, and the implications for individuals who at the moment maintain pre-settled standing within the UK.
Computerized Extensions of Pre-Settled Standing
In September 2023, modifications had been made to Appendix EU of the Immigration Guidelines to permit a person who holds pre-settled standing below the EU Settlement Scheme to have that depart prolonged mechanically by the Secretary of State, with out having to make an utility. This mirrored the judgement within the case of Independent Monitoring Authority for the Citizens’ Rights Agreements v the Secretary of State for the Home Department [2022] EWHC 3274 (Admin), the place it was discovered that a person’s proper to reside below below the Withdrawal and Separation Agreements doesn’t expire just by failing to have made an utility below the EU Settlement Scheme.
The federal government announcement accompanying the change acknowledged that:
“The process will be automated by the Home Office and reflected in the person’s digital status. They will be notified of the extension directly. This will ensure that nobody loses their immigration status if they do not apply to switch from pre-settled to settled status.”
Following this variation, the Unbiased Monitoring Authority for the Residents’ Rights Agreements (IMA) raised concerns with the House Workplace about these measures. The IMA has summarised the issues it raised as follows:
“Within the IMA’s view, the House Workplace’s preliminary strategy of mechanically making use of a two-year extension to pre-settled standing holders shortly earlier than they strategy their present date of expiry didn’t go far sufficient to deal with the judgment. This was as a result of it may doubtlessly adversely affect their rights.
The IMA was involved this place might have continued to trigger challenges for residents, for instance with employment or housing, because of the continued non permanent nature of pre settled standing being seen to 3rd events when checking a residents’ standing. The judgment was clear, standing mustn’t expire offering the individual continues to fulfill the underlying situations.”
In an additional announcement printed on 21 Might 2024, the House Workplace outlined the steps that they might take to deal with these considerations. The primary change is that the length of pre-settled standing extensions might be 5 years, quite than 2 years. The House Workplace will even take away the pre-settled standing expiry date from the digital profiles of pre-settled standing holders which seem as a part of the Proper to Work, Proper to Lease and View and Show your Standing checks. The House Workplace has additionally outlined that employers, landlords and letting brokers won’t be required to conduct an additional proper to work or hire verify the place the person stays of their employment or as a part of that tenancy settlement.
The suitable to work steering for employers printed in February 2024 confirmed the existence of an automated extension, but in addition confirmed that employers had been nonetheless required to conduct a proper to work verify and retain a outcome for individuals who held pre-settled standing. The steering indicated that follow-up checks on a person who held pre-settled standing must be made within the final month of their authentic interval of depart to make sure that the extension is mirrored of their standing. In mild of the House Workplace’s announcement, modifications to this steering are seemingly.
Do These Extensions Apply to Everybody With Pre-settled Standing?
In precept, and on the premise of a strict studying of the foundations, automated extensions solely apply to those that proceed to fulfill the eligibility necessities for pre-settled standing (apart from the necessities of dependency which apply to youngsters, dependent dad and mom or dependent family members). One among these eligibility necessities is that a person has accomplished a ‘continuous qualifying period’ of residence within the UK which started earlier than 31 December 2020. As readers could also be conscious, a ‘continuous qualifying period’ of residence is damaged via absences from the UK of greater than 6 months in any 12 month interval, except certainly one of a restricted variety of exceptions apply. Because of this those that have, since being granted pre-settled standing, been absent from the UK for greater than 6 months in any 12 month interval, is probably not eligible for an automated extension. Nonetheless, the extent to which the House Workplace will conduct such checks previous to issuing extensions stays unclear.
Eligibility for Settled Standing After an Extension
It is usually necessary for readers to bear in mind that the modifications that the House Workplace are setting up to permit people to increase their pre-settled standing don’t change the necessities that should be met to ensure that a person to be granted settled standing. These embrace a requirement that a person has accomplished a steady qualifying interval of residence of at the least 5 years that commenced earlier than 31 December 2020. Due to this fact, except an exception applies, if a person has damaged their continuity of residence since 31 December 2020, their qualifying interval for settled standing can’t be accomplished by counting on an extension. Whereas additional extensions is perhaps issued, these won’t permit such people to acquire settled standing (below the present guidelines); and in any case, the House Workplace have acknowledged that any bulletins about future extensions might be made sooner or later.
The House Workplace has additionally beforehand introduced its intentions to mechanically convert the standing of those that are eligible from pre-settled to settled standing. Their announcement in September 2023 confirmed that:
The House Workplace additionally intends to take steps to mechanically convert as many eligible pre-settled standing holders as attainable to settled standing as soon as they’re eligible for it, with out them needing to make an utility. Throughout 2024, automated checks of pre-settled standing will set up their ongoing steady residence within the UK. Safeguards might be in place to make sure that settled standing isn’t wrongly granted.
Nonetheless, such automated upgrades would stay topic to the eligibility standards talked about above; and till additional particulars are launched, those that are eligible ought to submit functions for settled standing with detailed proof of their residence within the UK.
Modifications to When Pre-settled Standing Will Lapse
The announcement of 21 Might 2024 was additionally accompanied by a change to the situations below which an individual’s pre-settled standing will lapse if they’re absent from the UK. Beforehand, an individual’s pre-settled standing would lapse in the event that they had been absent from the UK for a interval of greater than 2 years (with out returning to the UK throughout that point). Nonetheless, The Immigration (Go away to Enter and Stay) (Modification) Order 2024, which got here into power on 21 Might 2024, confirms that pre-settled standing won’t lapse except somebody has been absent from the UK for five years with out returning to the UK (or 4 years for Swiss nationals and their relations). This brings the provisions for pre-settled standing according to these which already existed for settled standing.
Regardless of this variation, holders of pre-settled standing ought to bear in mind the residence necessities which proceed to use to their depart, as mentioned earlier on this article. Though their standing might not lapse, a person who has spent such an prolonged time period outdoors of the UK can be susceptible to their standing being cancelled on the grounds that they now not meet the eligibility necessities for pre-settled standing.
Conclusion
Though it’s encouraging that the House Workplace has taken steps in response to the IMA’s suggestions, the complete particulars of the way in which by which the automated extension scheme might be carried out stays to be seen. People who’re involved about their present standing, or their standing sooner or later, ought to proceed to hunt authorized recommendation.
For skilled recommendation and help in relation to the EU Settlement Scheme, contact our Immigration Barristers on 0203 617 9173 or full the enquiry kind under.
