Do You Need to Switch from Pre-Settled Status to Settled Status?
A guide for EU nationals and their families on the decision in R (on the application of Independent Monitoring Authority for the Citizens’ Rights Agreement) v Secretary of State for the Home Department (European Commission and another intervening) [2022]
Until recently immigration solicitors would have confidently told you that pre-settled status under the EU Settlement Scheme is a temporary immigration status that needs to be converted by an application to the Home Office to full settled status after you meet the necessary residence requirement and other eligibility criteria.
Things are not so clear-cut in light of a recent court ruling. In this blog, our immigration solicitors look at the latest news on settled status for EU nationals.
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Pre-settled status
A recent High Court case has resulted in a ruling that the Home Office requirement that you must convert your pre-settled status by making a formal application for settled status to remain lawfully in the UK is unlawful.
Prior to the judicial review decision in the case of R (on the application of Independent Monitoring Authority for the Citizens’ Rights Agreement) v Secretary of State for the Home Department (European Commission and another intervening) [2022] the immigration rules were clear, namely if a pre-settled status holder failed to apply for settled status after meeting the residence requirement and they allowed their pre-settled status to lapse without making an application then their status converted to ‘unlawful’, with all the associated consequences.
For example, an EU national who failed to convert their pre-settled status to settled status would no longer have the right to live or work in the UK and would not be able to prove their right to rent. They would also face all the other hostile environment immigration consequences of being an illegal overstayer.
The Independent Monitoring Authority brought the judicial review application against the Home Office because put simply, they argued that the Brexit withdrawal agreement did not require an EU national with pre-settled status to take the positive step of making an application for settled status. Their case was that the initial pre-settled status application was sufficient to protect and preserve the EU national’s right to free movement, having moved to live in the UK before the end of the Brexit transition period of 31 December 2020.
The court found in favour of the Independent Monitoring Authority and concluded that it was unlawful for the Home Office to require a pre-settled status holder to submit a second application for settled status and if not lose their right to continue to legally live in the UK. The court held that the Brexit withdrawal agreement does not say that an EU national loses their free movement rights by failing to convert pre-settled status to settled status under the EU Settlement Scheme.
The Home Office has said that it does not intend to appeal the decision and that it is considering the implications of the ruling. Immigration solicitors say that the implications are likely to be significant for both pre-settled status holders and their employers. That’s because both an employer and an employee can face civil or criminal action if a worker is found to be working illegally in the UK. An employer does not have a statutory defence unless they conducted a right-to-work check, or repeat right-to-work check, on an employee.
Many employers who do not use digitalised diary systems find it hard to keep up to date with right-to-work checks for those members of staff who only have limited leave to remain in the UK and who therefore require repeat right-to-work checks. EU nationals with pre-settled status were in this category and immigration solicitors and employers will now have to wait and see how the Home Office intends to implement the decision and how it will impact the requirement to make a second application or to make a second right-to-work check or for a landlord to carry out an additional right- to- rent check on an EU national tenant.
The interim position
Whilst the Home Office works out the new rules, the advice to those with pre-settled status is to apply for settled status when you are eligible to do so. The same advice applies to employers and landlords in relation to the conduct of right-to-work and right-to-rent checks until the Home Office clarifies the rules and brings out their new guidance. Therefore, immigration solicitors advise all that it is ‘business as usual’ when it comes to settled status applications and checks until the position is clarified.
Converting pre-settled status to settled status
Pre-settled status under the EU Settlement Scheme gives limited leave to remain in the UK for 5 years. Under the current guidance you need to apply for settled status to maintain your lawful residence status in the UK once you have lived continuously in the UK for 5 years and before your pre-settled status expires.
However, immigration solicitors say the EU Settlement Scheme rules allow you to convert your pre-settled status to settled status as soon as you meet the 5-year residence requirement, rather than having to wait until your reach the end of your pre-settled status before you make the application.
Once you have settled status you have the right to remain in the UK on a permanent basis so it makes sense to apply for settled status as soon as you can, rather than wait for revised Home Office guidance to trickle down.
You can convert from pre-settled status to settled status when you meet these eligibility criteria:
- You have lived in the UK for a continuous period of 5 years
- You have not been absent from the UK for more than 6 months in any 12 month period during the 5-year period. If you have been absent from the UK for longer speak to an immigration solicitor about exceptions to the rule or asking the Home Office to exercise discretion
- You are of good character
Applying for settled status involves an online application. It does not change your nationality but does give you a non-time limited right to live and work in the UK. If you plan to live in the UK on a long term basis and see the UK as your new home you may be interested in applying for British citizenship for yourself or your children. This is something our immigration solicitors can help you with.
UK Online and London-Based Immigration Solicitors
For advice on immigration law call the expert London immigration lawyers at OTS Solicitors on 0203 959 9123 or contact us online.
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