EU and EEA EFTA citizens and their family members who submitted a valid application to the EU Settlement Scheme (EUSS) but are awaiting the outcome of their application should receive a Certificate of Application (CoA) immediately.

While it does not confirm that the person has immigration status in the UK under the EUSS, it can be used to evidence the temporary protection of their rights, for example the right to work, rent or access benefits, while the decision on their application, or any administrative review or appeal, remains pending.

Home Office guidance on CoAs can be found here.

Following the reports of issues at the border for some citizens, the IMA has written to the Home Office to seek clarification of its position on the rights of citizens in receipt of a CoA when travelling, including where an administrative review is pending.

The IMA has also issued guidance to pre-settled and settled status holders around absences from the UK and how it may affect your EUSS status.

The IMA encourages any EU or EEA EFTA citizen or their family members who believe their rights are not being upheld to submit a complaint to its online portal.

For more information visit the IMA’s website for detailed information on the rights of EU and EEA EFTA citizens and their family members who have applied to the EUSS.

Understanding how absences from the UK can impact EUSS status can be confusing.

We have been told that extensions of pre-settled status and changes to the rules around automatic lapsing of status following time spent outside the UK have potentially added to this confusion.

The rules which govern how long a person with EUSS status can spend outside the UK are different depending on whether you have pre-settled status or settled status.

The Home Office has published guidance on its approach to absences and how it may impact a citizen’s EUSS status.

Settled status

If you have settled status, you can live outside the UK for up to 5 consecutive years without your absence affecting your EUSS status and your ability to return to live and work in the UK.

Pre-settled status

To retain your eligibility for pre-settled status and, after 5 years, be able to qualify for settled status, you will need to show that you have maintained your continuous residence in the UK.

The rules on continuity of residence provide that you can be absent from the UK for up to 6 months in any 12-month period without affecting your continuous residence in the UK or your ability to qualify for settled status.

There are also some circumstances in which an absence from the UK of more than 6 months in a 12-month period will be permitted, such as:

• one period of up to 12 months for an important reason – for example, childbirth, serious illness, study, vocational training, an overseas work posting or because of coronavirus (COVID-19)
• compulsory military service of any length
• time you spent abroad as a Crown servant, or as the partner or child of a Crown servant
• time you spent abroad in the Armed Forces, or as the partner or child of someone in the Armed Forces
• time you spent working in the UK marine area

Separate guidance is available if you were outside the UK for more than 12 months because of COVID-19.

EU and EEA EFTA citizens (and their family members) with pre-settled status who have lived in the UK for at least 5 years and have acquired the right of permanent residence automatically under the Agreements, can also live outside the UK for up to 5 consecutive years without it affecting their EUSS status and their ability to return to live and work in the UK. It is important to note that the right of permanent residence must have been acquired before you left the UK.

Whether, as a pre-settled status holder, you have acquired the right of permanent residence automatically under the Agreements depends on certain conditions being met. For example, if you have worked in the UK as an EU or EEA EFTA citizen for 5 years since before 31 December 2020, then you will have acquired the right of permanent residence. However, in this example, you would need to evidence those 5 years of work in the UK in order to benefit from the right to live outside the UK for up to 5 years. The easiest way to evidence your right to live permanently in the UK (and to live outside the UK for up to 5 years) is to obtain settled status under the EUSS.

If you hold pre-settled status, but do not know whether you have acquired the right of permanent residence automatically under the Agreements and wish to leave the UK for more than 6 months (and without obtaining settled status under the EUSS), then you should seek independent immigration advice on your circumstances from an immigration adviser registered with the Office of the Immigration Services Commissioner (OISC).

In April 2024, the IMA reported on the Immigration (Leave to Enter and Remain) (Amendment) Order 2024. The effect of the Order is that pre-settled status will automatically lapse after more than 5 consecutive years of absence from the UK. Prior to the change, pre-settled status would automatically lapse after more than 2 consecutive years of absence from the UK.

It is important to note that this change is separate to the rules on continuity of residence, which remain as set out above, and does not extend the absence from the UK permitted for a pre-settled status holder to retain their eligibility for pre-settled status and, after 5years, be able to qualify for settled status. If in doubt, you should seek independent immigration advice on your circumstances from an immigration adviser registered with the OISC.

It is also important to note that an extension of pre-settled status does not alter the rules on continuity of residence as set out above. If continuous residence in the UK has been broken, then you may no longer meet the eligibility criteria for your status,  even if you have been granted an extension by the Home Office.

The IMA encourages any EU or EEA EFTA citizen or their family members who believe their rights are not being upheld to submit a complaint to its online portal.

For more information visit the IMA’s website for detailed information on the rights of EU and EEA EFTA citizens and their family members who have applied to the EUSS.

Further information can also be found the FAQs section of our website.

The IMA, which was set up to monitor and promote the rights of EU and EEA EFTA citizens and their family members, intervened in the case against the Secretary of State for Work and Pensions’ (SSWP).

In the case, DWP had said that an EU citizen (AT) was refused Universal Credit as she had pre-settled status but did not have a qualifying right to reside. By not being able to claim the benefit, AT was at risk of destitution as she had fled her home with her child after being the victim of domestic violence.

The courts consistently found that the protection of the Charter of Fundamental Rights of the European Union (the Charter) to be able to live in dignified conditions applies under the Withdrawal Agreement in certain circumstances. In this case, AT was able to rely on her Charter right to live in dignified conditions and therefore was able to access Universal Credit.

Claims for Universal Credit for those in similar circumstances to AT had their applications put on hold whilst litigation was ongoing. Following the conclusion of this case, the IMA is pleased to confirm these applications are now being processed.

The IMA is now monitoring how DWP is implementing the judgment and the progress on its plans to clear the backlog of Universal Credit applications that were previously put on hold. It is also looking into the wider implementation of the Charter to eligible cohorts.

The IMA continues to seek clarity on the way that claims are being assessed to assure itself that the judgment is being properly applied. The DWP has released guidance to caseworkers on Charter rights assessment following SSWP v AT.  This guidance is being used to aid caseworkers in their decision making in cases similar to AT. The caseworker guidance is being used in the historic cases that are now being processed and for all future claims. The IMA has provided feedback to DWP on the revised caseworker guidance.

A further public statement with updates will be published in due course.

The IMA also continues to review the broader impact of the judgment across Government. The IMA is engaging with the Ministry of Housing, Communities and Local Government to assess the impact of the judgment to homelessness assistance.

The IMA welcomes the collaborative approach to resolve matters in these areas as we recognise this impacts some of the most vulnerable citizens in our society.

The IMA encourages any citizens who have been impacted by the judgment and have experienced issues with either Universal Credit, Pension Credit, Housing Benefit or homelessness assistance to contact us through our online portal.

Following the UK’s departure from the EU, all eligible citizens, including children, are required to apply to the EU Settlement Scheme (EUSS) and obtain a grant of Pre-Settled or Settled Status to guarantee their rights to live, work, study, and access benefits in the UK. 

The IMA launched a review of Health and Social Care Trusts in Northern Ireland to establish how they identify looked after children and care leavers who need to apply to the EUSS, and the procedures put in place to monitor those applications.       

As part of our monitoring duties, we are undertaking assurance reviews across all local authorities in England, Northern Ireland, Scotland and Wales. You can read our Assurance Review Reports here. 

The initial review in Northern Ireland looked at information in three key areas; identification, record keeping and retrospective checks, with each local authority categorised as red, amber or green in a grading system.   

The IMA identified no overarching concerns based on the responses from all five Health and Social Care Trusts and is sufficiently assured based on the information provided about the robustness of identification processes, record keeping and retrospective checks.  

The report can be located here.  

Pam Everett, IMA Director of Operational Delivery said: “The IMA has welcomed the positive collaboration with Health and Social Care Trusts in Northern Ireland who have sufficiently assured the IMA that each Trust is discharging their responsibilities and are providing appropriate support in relation to making and supporting EUSS applications on behalf of all eligible looked after children, children in receipt of Health and Social Care Trust care and support, and care leavers.   

“Those who have successful applications should have guaranteed their rights to continue to live, study and work in the UK.”  

Based on the information provided, the IMA does not at this stage consider that further compliance action is required by any Health and Social Care Trust in Northern Ireland.   

The initial review of all local authorities and Health and Social Care across the UK have been completed as part of Phase 1 of this work.  The IMA will continue with individual assurance reviews across England and Scotland.   

In December 2022, the High Court found certain aspects of the EU Settlement Scheme (EUSS) to be unlawful. The Court’s ruling affects more than two million EU and EEA EFTA citizens with pre-settled status.

The judge ruled that individuals with rights under the Agreements should not lose their right to live in the UK if they do not make a second application to the EUSS. Also, those with pre-settled status automatically acquire permanent residence rights once they have lived here for five years and met the relevant conditions under the Agreements.

The EUSS is the way which EU and EEA EFTA citizens and their family members secure the right to live in the UK. There are two types of EUSS status: pre-settled status for those that have lived in the UK for under five years and settled status, usually for those who have lived here for over five years.

The Home Office plans to address the High Court’s judgment by granting a two-year extension of pre-settled status for those who haven’t switched to settled status shortly before their original expiry date, automatically converting as many pre-settled status holders to settled status as possible and ensuring individuals can rely on their permanent residency rights once acquired.

The IMA is concerned that a two-year extension for pre-settled status does not address the Court’s ruling and that citizens may face challenges in areas of their lives, such as employment or housing due to the temporary nature of pre-settled status being reflected on official documents.

It is also highlighting a lack of clarity for citizens and authorities regarding automatic acquisition of permanent rights, leading to potential confusion.

The IMA is urging the Home Office to make a public statement clarifying the rights of citizens under the Agreements.

Miranda Biddle, Chief Executive of IMA said: “We continue to work with the Home Office to resolve potential issues arising from the proposed implementation of the High Court judgment. While the Home Office has been effective in many cases, some citizens face uncertainty impacting their ability to live, work, and raise families in the UK.”

The IMA will continue to give updates on this issue but in the meantime, anyone facing difficulties accessing their rights is encouraged to contact the IMA for support.

For more information visit the IMA’s website for detailed information on the rights of EU and EEA EFTA citizens who have applied to the EUSS.

For further information on changes to the EU Settlement Scheme as a result of the Judicial Review please visit the FAQs section of our website.