30th June 2024 marks three years since the EU Settlement Scheme application deadline. Considering the Scheme was introduced in March 2019 (excluding the pilot period in late 2018), more time has passed since the application deadline than the entire duration during which the Home Office expected people to apply for their status. The fact that people are still struggling to obtain their status proves that the entire process was not as straightforward as initially expected. In this article, we aim to capture the changes that have occurred in the EU Settlement Scheme over the last 12 months, affecting EU nationals living in the UK. The UK immigration system is very complex, and it is not easy to stay up to date without following it constantly.

Significant changes came into force on 9th August 2023 when the Home Office updated the immigration rules and their EUSS caseworker guidance. All late applications submitted on or after that date must have a clear explanation and evidence proving the reasonable grounds for applying after the deadline of 30th June 2021. Previously, the Home Office’s caseworkers gave the benefit of the doubt to applicants and were not as strict in accepting their applications. Additionally, assessing the reasonable grounds for a late application now happens at the validity check stage of the application, as opposed to the eligibility check stage. This has huge implications for late applicants.

Previously, when a person submitted their application correctly and provided proof of their identity, they received a Certificate of Application granting them temporary protection of their right to reside and work until a decision was made. After that, it could take a long time for the Home Office to process the application and decide whether the applicant had reasonable grounds to apply late and whether they were eligible for the status (e.g., if they arrived in the UK before 31st December 2020 or after that date). The decision to grant or refuse the status could come after months of living and working in the UK using CoA. Now, if the Home Office decides that the applicant did not have reasonable grounds to apply late, they will reject (not refuse!) the application as invalid, which means there is no possibility to appeal the decision. There will not issue Certificate of Application before assessing the reasonable grounds.

Although the Home Office intended to close the loophole for people who arrived in the UK after the end of the transition period and used the Certificate of Application to be able to work, the reality is that this change has created additional barriers for those who were residing in the UK before 31st December 2020 but did not obtain the status due to various obstacles. These obstacles include language and IT barriers, chaotic lifestyles, or vulnerable situations such as domestic abuse. Many of these individuals may find it difficult to gather evidence or apply without fully understanding the process. We firmly believe that, without help from a support organization such as ours, it is almost impossible for most of these people to submit a late application and have it accepted as valid.

Another significant change followed shortly thereafter: as of 5th October 2023, the right to request an Administrative Review regarding decisions under the EUSS was removed. From this date onward, the only way to challenge a refusal or cancellation of settled or pre-settled status is by appealing to the First-Tier Tribunal. This change makes the process more complex because applicants will now need representation, yet there are few free immigration advisers available to help them. While individuals can represent themselves and appeal, this can be a daunting and challenging process.

Luckily, not all changes have been negative for EU nationals. Following a High Court ruling, the Home Office was compelled to safeguard the rights of individuals with pre-settled status. Those who did not apply for settled status and faced expiry of their pre-settled status were at risk of losing their right to reside in the UK, which would have breached the Withdrawal Agreement. Consequently, starting in September 2023, the Home Office began extending the expiry date of pre-settled status by 2 years. This was further extended to 5 years in May 2024.

The Home Office checks their database at the beginning of each month to identify pre-settled statuses nearing expiration in that month, automatically applying extensions. Individuals whose status is extended should receive an email notification. However, we advise pre-settled status holders to monitor their digital profile to confirm the extension of their expiry date.  If any issues arise during this process, we encourage contacting us for assistance emailing us for assistance at info@citizensrightsproject.org. Additionally, we recommend reporting any problems to the3million, an organisation that gathers evidence on technical issues related to the EUSS, and submit a complaint to the Independent Monitoring Authority (IMA).

According to the Home Office, individuals who have already received a 2-year extension will not be upgraded to the 5-year extension because of simultaneous changes to the EUSS.

While these extensions provide increased long-term security with pre-settled status, we always recommend transitioning to settled status as soon as an individual reaches 5 years of continuous residence in the UK.

In May 2024, alongside extending the extension of pre-settled status to 5 years, the Home Office removed the expiry date from the confirmation of the status that was visible to employers, landlords, or any other person using share code to check person’s right to reside. Expiry date is still visible for people who log into their digital profile. As a result of this change, employers will not be required to conduct further right to work checks for people with pre-settled status for the entire duration on that person’s employment.

From 21st May 2024, pre-settled status could be automatically cancelled if individuals are absent from the UK for 5 years. This is an extension from the previous 2-year threshold. However, this rule does not apply to those who were already absent for more than 2 years before this date. Individuals absent for less than 2 years before 21st May 2024 can benefit from this extension and retain their pre-settled status unless their absence exceeds 5 years.

It’s crucial to note that individuals aiming to switch to settled status in the future must maintain continuous residence in the UK for 5 years. While longer absences not justified by important reasons may not lead to losing pre-settled status, they can impact the ability to demonstrate the required 5 years of continuous residence for settled status.

The Home Office has stated that they will attempt to automatically switch pre-settled status to settled status where possible. This would involve automatically scanning people’s National Insurance Numbers in the digital database to determine, through tax history, whether the individual has been residing in the UK for more than 5 years. We do not know exactly how this process will be conducted or when in 2024 it will happen. For now, we strongly advise not relying on this automatic process and taking care of this yourself. It is very unlikely that people who did not provide their NIN in the pre-settled status application or do not have a continuous record of employment would receive settled status automatically, so many people will still have to re-apply for settled status themselves.

We are still unsure how the Home Office will treat those with pre-settled status who have had long absences (or lack evidence of residence) of over 2 or 5 years.

Another outcome of the High Court judgment in December 2022 is that a person acquires permanent residence rights in the UK if they have pre-settled status and have maintained 5 years of continuous lawful residence in the UK (even if they did not apply for settled status). Previously, only those with settled status could benefit from permanent residence rights.

Continuous lawful residence means that an individual has not only lived in the UK during that time but has also exercised EU free movement rights, such as working, studying, or being self-sufficient. Once a person with pre-settled status can prove their continuous lawful residence in the UK for 5 years, they can benefit from permanent residence rights.

Permanent residence can be used to demonstrate the right to:

• Obtain British citizenship
• Register your child as a British citizen
• Have a baby born automatically British
• Pass the ‘right to reside’ test for accessing public funds

For more detailed information, we recommend reading Questions and Answers created by the3million about the recent changes in the EU Settlement Scheme. You can access it through the button below: