The High Court has determined that the expiry of pre-settled status under the EU Settlement Scheme is unlawful, as it fails to fully protect the rights of EEA citizens who qualified to register their right to remain in the UK post-Brexit.
EEA nationals and their eligible family members who were lawfully residing in the UK on or before 31 December 2020, were required to make an application to the EU Settlement Scheme (EUSS) in order to preserve their right to remain in the UK post-Brexit. The deadline to apply to the EUSS for those individuals was 30 June 2021, however late applications are permitted in limited extenuating circumstances.
Applicants who, on the date of their application to the EUSS, could show that they had lived continuously in the UK for at least 5 years were granted “settled status”. Applicants with less than 5 years’ continuous UK residence were granted “pre-settled status”, which came with a requirement to make a further application to the EUSS once they achieved 5 years’ residence, to convert their temporary status into settled status, or risk becoming an overstayer.
An independent body, commissioned by the Government to protect the rights of EU nationals living in the UK, challenged the legality of the requirement for those with pre-settled status to make a further application for settled status in order to protect their right to legally remain in the UK.
The High Court held that requirement was unlawful and breaches the UK-EU Withdrawal Agreement, because it fails to adequately protect the rights of EU citizens. Those with pre-settled status should not lose their residence rights simply because they do not make a second application to the EUSS before their pre-settled status expires.
Despite previous indications to the contrary, the Home Office has confirmed that it will not be appealing this decision and will instead incorporate the ruling into law.
The ruling confirms that those who acquired pre-settled status under the EUSS technically do not need to make an application for settled status to have the legal right to remain in the UK. However, for practical and evidential reasons, we recommend that individuals affected by the High Court’s decision do still apply to convert their status to “settled”, in order to ensure they have the recognised documentary evidence available to prove their right to live and work in the UK.
For further advice on the EU Settlement Scheme or any other immigration matters, please contact Ashfords’ Immigration Team.
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