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August 09, 2023

British Government Announces Changes to the EU Settlement Scheme

At a Glance

  • The British government recently announced changes to the EU Settlement Scheme.
  • The change includes a provision that beginning in September 2023, people with Pre-Settled Status under the scheme will automatically have their status extended by two years before it expires if they have not obtained Settled Status.

The British government recently announced changes to the EU Settlement Scheme, with particular reference to the method of extending leave (the right to reside in the United Kingdom) under this scheme.

What Is the EU Settlement Scheme?

Following the UK’s decision to withdraw from the European Union in June 2016, the British government introduced the EU Settlement Scheme as a means of protecting the rights of EU citizens residing in the UK, exercising their treaty rights. This was also one of the obligations imposed by the EU-UK Withdrawal Agreement. 

The EU Settlement Scheme (EUSS) allowed EU citizens residing in the UK before 31 December 2020 (the end of the transition period) to apply for Pre-Settled Status, with a view to upgrading this to full Settled Status once the status holder had resided continuously in the UK for at least five years. The five-year period would be counted from the date the person first started living in the UK, not from the date they were issued Pre-Settled Status; consequently, individuals already residing in the UK for at least five years before the end of the transition period could apply directly for Settled Status without the need to apply for Pre-Settled Status first. After 12 months of Settled Status, the holder is eligible to apply to naturalise as a British citizen. 

Under the initial iteration of the rules, Pre-Settled Status holders were required to submit to reapply for the same status or apply for Settled Status before the expiry of their initial permission. A failure to apply could result in the loss of status and, subsequently, the right to work in the UK and access public services.

The Change

Following a legal challenge, the High Court judged it to be unlawful to require status holders to apply for an extension or lose their rights, as this would be contrary to the Withdrawal Agreement. The British government introduced a change to the Immigration Rules to reflect the ruling, announcing:

“New Immigration Rules, laid in Parliament today (17 July), confirm that from September 2023 people with pre-settled status under the EU Settlement Scheme (EUSS) will automatically have their status extended by 2 years before it expires if they have not obtained settled status.’’

The government also announced the intention to automate the process of switching from Pre-Settled to Settled status. However, this is yet to be codified into the Immigration Rules. A reason for this delay may potentially be because of the difficulty of identifying how to confirm if the applicant has been continuously resident in the UK for at least five years. Normally an applicant would meet the requirement by submitting copies of correspondence and other documents attesting to this. We will have to wait to see how the government will confirm this without intruding on an individual’s right to privacy.

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