5 years on, this is how things are looking…? (Brexit and the EU Settlement Scheme)

The EU Settlement Scheme (EUSS) enables EU, other EEA and Swiss citizens resident in the UK by the end of the transition period of 31 December 2020, and their family members, to obtain an immigration status they need in order to live and work in the UK after 30 June 2021. The scheme opened to the public on 30 March 2019.

Pre-settled status is granted for a period of 5 years to applicants who were living in the UK before 31 December 2020 but had not yet completed 5 continuous years of residence in the UK. Settled status is granted to applicants who were living in the UK before 31 December 2020 and have completed 5 years in a row of continuous residence in the UK. On 31 May 2024, the Home Office announced that as of 31 December 2023, 5.7 million people had secured their rights in the UK through the scheme, with 2 million holding pre-settled status and 3.7 million holding settled status.

Some applicants entered the UK in 2019 or just before the transition period and are therefore now eligible to switch from pre-settled status to settled status on the basis that they have now completed 5 continuous years residence in the UK. Unfortunately, some applicants have underestimated the requirements and documentary evidence needed to successfully switch from pre-settled to settled status. As immigration practitioners we are increasingly receiving enquiries from those who have pre-settled status and have been refused settled status. Below we look at some of the recurring reasons of refusal from the Home Office.

5 full years residence in the UK:

It is important to apply once you have completed 5 years’ full years of residence in the UK. For example, if you entered the UK on 02 September 2019 and you were granted pre-settled status on 03 December 2019, you would be eligible to apply for settled status on 02 September 2024 (5 years from the date you entered the UK). We have seen some applicants who have applied to switch from pre-settled status to settled status when they had completed 4 years and 6 months residence, thereby applying about 6 months or more before the completion of 5 years and have been refused on the basis that they have not yet completed 5 full years residence in the UK. When we asked these applicants why they had applied too early, they replied by stating they had received an email from the Home Office which stated the following: 

“You are receiving this email notification because Home Office records show that you hold pre-settled status under the EU Settlement Scheme (EUSS), and because you may now be eligible for settled status….”

Following receipt of such emails, the applicants then proceed to apply for settled status not realising that the email is automated. The email is just a reminder and does not counter in the applicant’s specific immigration history and circumstances and whether there are other factors which may impact their eligibility for settled status. Therefore, in some ways the email can be misleading, it is therefore advisable to reach out to a qualified immigration practitioner to check your eligibility before applying.

Continuous qualifying period in the UK & length of absences from the UK:   

The applicant would need to demonstrate that they have completed a five-year continuous qualifying period in the UK. This means that for five years in a row, they were in the UK in the capacity of the following combinations:

• a relevant EEA citizen;
• a family member of a relevant EEA citizen;
• a family member who retained the right of residence by virtue of a relationship with a relevant EEA citizen;
• a person with a derivative right to reside;
• a person with a Zambrano right to reside;
• a family member of a qualifying British citizen;
• a family member who retained the right of residence by virtue of a relationship with a qualifying British citizen, 

One of the reoccurring reasons of refusal we come across is due to the applicant’s absence from the UK and Islands for more than 6 months in any 12-month period. There are a few exceptions to that rule which are set out in in the Appendix EU, below we have set out the most common examples of absences exceeding 6 or 12 months:

• one period of up to 12 months absence from the UK and Islands for an important reason (for example pregnancy, childbirth, serious illness, study, vocational training or an overseas work posting or because of COVID-19)
• Period of absence which did exceed 12 months because COVID-19 meant that the person was prevented from, or advised against returning earlier; however where this is the case, the period of absence exceeding 12 months will not count towards any period of residence in the UK and Islands on which the person relies

We have seen a number of applicants who have been refused due to an absence of more than 6 months. All of whom have valid reasons for the excess absence and were primarily during the COVID-19 pandemic. However, none of the applicants have properly explained to the Home Office the reason for the absence and importantly, the applicants had either  provided very little evidence or no documentary evidence to support their reasons  of  absence thereby resulting in a refusal and also being denied further pre-settled status.

The Home Office usually assesses whether the applicant has resided in the UK for the qualifying period usually by accessing the National Insurance and tax records. However, where an applicant has not worked for the full five years, then they would have to provide alternative documents to evidence that they were residing in the UK. Failing to provide evidence of residence in the UK for the periods of time stipulated in the application form will usually result in a refusal of settled status. One of the reoccurring mistakes that we have seen is that applicants would provide just one document to evidence a period of 3 or 4 years in the UK.

Resident in the UK before 31 December 2020 & time spent outside of the UK:  

One very interesting point of refusal that we have noticed in the majority of the refusal letters for settled status applications is that the applicants have not provided any documents to evidence that they were residing in the UK in the 6 months prior to the specified date (i.e. 2300 GMT on 31 December 2020). One would say that there is no reason to provide this for an application relating to settled status as the applicant would have provided such evidence in 2019 or 2020 when they applied for the pre-settled status. However, where the Home Office have undertaken an assessment and the applicant is deemed to not meet the requirements for settled status, the Home Office have then proceed to consider whether the applicant qualifies for further pre-settled status and therefore, the applicant is required to provide evidence that they were resident in the 6 months period prior to the specific date. Furthermore, being absent from the UK for more than 6 months in every 12 month period, would also mean that the applicant would not qualify for pre-settled status. This is why it is extremely important to prepare documents to support the excess absence.

Additionally, the question of whether the applicant qualifies for further pre-settled also relates back to the documents provided to evidence the period of residence in the UK. Where the Home Office have not been able to assess via National Insurance and tax records, the application form would usually prompt the applicant to provide evidence for specific periods. Failure to provide documents to evidence residence in the UK can lead to a refusal of pre-settled status especially, if the documents have gaps of more than 2 years. An applicant may automatically lose their pre-settled status if they spent more than 2 years in a row outside the UK, the Channel Islands or the Isle of Man by 21 May 2024.

What happens if I do not apply for settled status before the expiry of my pre-settled status?

In July 2023, the government initially announced that from September 2023, individuals with pre-settled status under the EU Settlement Scheme will automatically have their status extended by 2 years before it expires if they have not obtained settled status. Later, on 21 May 2024, changes to the EU Settlement Scheme were announced to ensure that those granted pre-settled status can continue to prove their rights easily, and bring greater clarity for those who are required to check immigration status, such as employers and landlords.  The changes were introduced to implement the High Court judgment in the judicial review proceedings brought by the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA). The Home Office confirmed in the announcement that they have changed the duration of pre-settled status extensions from 2 years to 5 years. The Home Office also confirmed the removal of the pre-settled status expiry date from the digital profiles shown to third parties in the online checking services for Right to Work, Right to Rent and View and Prove. Alongside this change, employers, landlords and letting agents will not be required to conduct a further right to work or rent check where the individual remains in their employment or as part of that tenancy agreement.  

It is important to note that your contact details with UKVI are up to date so that you are effectively able to monitor the status of your visa and receive any communications regarding the automatic extension of the same.