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Tuesday, May 28, 2024
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EU Settlement Scheme Update

Introduction

The European Union is in a state of flux when it comes to the rights of EU citizens and their family members residing in the UK post-Brexit. On 17 July 2023, the government published a new Statement of Changes to the immigration rules with notable amendments affecting the EU Settlement Scheme (Appendix EUSS). This update has sparked much debate and opinion about what the Home Office would do practically to ensure that EU citizens’ rights are protected, as the Secretary of State confirmed that the Government would not appeal against an earlier landmark decision.

Background to Pre-Settled Status and right to Permanent Residence

Under Appendix EUSS, EU citizens and their family members with less than five continuous years residence in the UK were eligible to apply for Pre-Settled status whilst those who had five or more years of continuous residence were eligible for Settled status. This meant that all EU nationals and their family members residing in the UK were required to take action under the scheme. However, with the introduction of COVID-19 into the world, imposed travel restrictions and a huge wave of Pre-Settled status applications submitted just before the Brexit official date, many such holders found that they would not be eligible for Settled status after five years. This sparked much debate leading to a court case by the Independent Monitoring Authority (IMA) whose role is to monitor the rights of EU, EEA and EFTA citizens post Brexit.

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The Court Case

On 21 December 2022, the High Court found that a right of residence can only be lost in the precise circumstances defined in the Withdrawal Agreement under section 15(3). A loss of rights for failure to upgrade from Pre-Settled to Settled status did not fall under one of those circumstances.

Furthermore, Justice Lane considered Article 18 of the Withdrawal Agreement and stated that “the WA means that the rights conferred by the grant of new residence status under Article 18…includes the right to reside permanently in the United Kingdom”. His position was that overall, the current EU Settlement Scheme operates unlawfully and does not protect the rights of beneficiaries of the scheme.

“New” EU Settlement Scheme

In response to the court case, the Home Office announced on 17 July 2023 that it would be making changes to the EU Settlement Scheme. These changes include:

  • An automatic two-year extension to Pre-Settled Status, giving eligible applicants more time to accumulate the five years’ continuous residence needed for Settled status.
  • Plans to automatically convert Pre-Settled Status to Settled Status for eligible applicants.
Conclusion

The Home Office’s latest update on EU Settlement Scheme is arguably less generous than most expected. Whilst it is welcomed that Pre-Settled status holders are given an additional two year extension, there is still pressure for them to accumulate five years’ continuous residency in order to be granted Settled status. A large number of EU citizens may be impacted by their absences from the UK due to COVID-19 imposed travel restrictions and therefore may not be able to apply for Settled status even with this additional extension. There is still debate around whether these changes go far enough and whether they are as generous as most expected. It remains to be seen whether there may be another court case regarding this update.

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