Converting Pre-Settled Status to Settled Status
With the global pandemic, the war in Ukraine, and threats of recession, Brexit has slipped down the list of news items in most news programmes and newspapers. For EU nationals living in the UK, Brexit remains a bug bear for those who have pre-settled status under the EU Settlement Scheme. The government scheme is now the subject of a judicial review challenge.
In this article our immigration solicitors look at the EU Settlement Scheme judicial review proceedings and EU nationals converting pre-settled status to settled status.
UK Online and London Based Immigration Solicitors
The rights of EU nationals in the UK
If you conducted a straw poll of EU nationals living and working in the UK, you will find that there remains a feeling of disgruntlement. After all, many settled in the UK before Brexit and they based their plans on UK and EU free movement rules at the time of their relocation. With Brexit, the goal posts changed and many still perceive that as unfair.
Some UK employers may question why it matters as EU nationals who moved to the UK before the 31 December 2020 had the option to apply for settled status or pre-settled status and can apply to convert their pre-settled status to settled status once they meet the five year UK residence requirement.
Other UK employers are acutely aware that feelings of disgruntlement can end up in EU nationals leaving the UK to return to their EU countries where they don’t have to prove their status and don’t feel like second class citizens because of Brexit. For example, to some London restaurant owners the loss of EU bar and waiting on staff can be a HR nightmare because of the chronic staff shortages in the restaurant and hospitality sector. With the end of free movement, those workers can't be easily replaced because:
- EU nationals looking to move to the UK to live or work are no longer eligible to move to the UK under the EU free movement policy
- The deadline for new pre-settled status and settled status applications under the EU Settlement Scheme has passed
- The route to UK entry clearance for both EU and non-EEA nationals is the UK points based immigration system
- There is no UK lower skilled visa route and many jobs, like waiters and bar staff in the restaurant sector, do not qualify for a skilled worker visa because their jobs are not contained on the government issued list of jobs with standardised occupational codes that qualify for a skilled worker visa. There are limited options for employers and EU nationals who are subject to immigration controls and who don’t qualify for the skilled worker visa. For example, working whilst on a student visa (subject to student visa conditions) or working whilst on a graduate visa or family visa
The judicial review proceedings against the Home Office
The high court has given permission for a judicial review application to be argued, rather than dismissed out of hand. The application is being brought by The Independent Monitoring Authority (IMA). The IMA is a statutory body whose job is to monitor the rights of EU citizens.
Getting the go ahead to argue their case is only the first step in the judicial review proceedings but many immigration solicitors have welcomed the high court decision.
The IMA is arguing that the pre-settled status time limits under the EU Settlement Scheme is not compatible with the UK -EU Withdrawal Agreement, mainly because there are time limits for EU nationals living in the UK before the 31 December 2020 to apply for settled status or pre-settled status and time limits to convert the pre-settled status to settled status. The ultimate penalty for being in the UK without immigration status is deportation, however remote that prospect is for EU nationals.
The IMA case centres on the fact that EU nationals with free movement rights (because they were living in the UK on or before the 31 December 2020) have lost rights as their pre 31 December 2020 rights were not time limited to making an application for pre-settled status to the EU Settlement Scheme by a specified date, with failure to act potentially resulting in loss of rights. The loss of rights includes the right to work and live in the UK as well as the right to rent or receive free NHS treatment.
This is not an issue that will impact on just a few EU nationals. It is estimated that there are around 2.4 million EU nationals living in the UK with pre-settled status. If an EU national with pre-settled status wants to stay in the UK after their pre-settled status ends, they need to take a positive step and apply for settled status . The application won't happen automatically unless the EU citizen takes the step and makes a settled status application.
EU nationals and UK employers
Immigration solicitors are alerting EU nationals and UK employers of the ‘ticking time bomb’ of EU nationals who will need to apply for settled status once they meet the five year residence requirement and their pre-settled status ends. If the judicial review application fails, those watching the clock with pre-settled status, will need to leave the UK or regularise their position by applying for settled status. If the application is not made, not only will the EU national lose their right to work and live in the UK, but the UK employer will also lose another valuable employee as they will no longer be able to continue to employ the worker as all employees must have the right to work during the duration of their employment, not just when they commenced their employment with the UK employer.
If you are an EU national with settled status or pre-settled status and have questions or you are a UK employer concerned about retaining your EU national workforce, our immigration solicitors can help answer your questions on the EU Settlement Scheme.
UK Online and London Based Immigration Solicitors