IMA Welcomes Clarification on How Rights Will be Safeguarded

Following Brexit, all EU and EEA EFTA citizens resident in the UK by 31 December 2020, and their family members, had to successfully apply to the EU Settlement Scheme (EUSS) for UK immigration status to secure their right to live, work and raise their families here.

Eligible citizens who had been here for less than five years at the date of application were generally granted pre-settled status, while those who had been here for at least five years were granted settled status. The previous Home Office position was that citizens with pre-settled status needed to make a further application to the EUSS before their pre-settled status expired or they would lose their rights.

The IMA, which was set up to ensure the rights of citizens and their family members are upheld by public bodies after Brexit, believed it was unlawful for citizens to lose their rights if they did not make a further application to the EUSS. This view was upheld in a landmark judgment.

Following this judgment, the Home Office now extends pre-settled status by five years shortly before it is due to expire if the holder is yet to obtain settled status. This helps to ensure that citizens are not prevented from accessing their rights for failure to make a second application to the scheme.

The Home Office has also removed the pre-settled status expiry date from View & Prove and the right to work and rent checking services for employers and landlords, who are also no longer required to conduct follow-up checks once they have established that a citizen has pre-settled status.

The judgment also found that a permanent right to reside under the Withdrawal and Separation Agreements is acquired automatically by a citizen with pre-settled status once the relevant criteria are met. There will, therefore, be some citizens in the UK who have pre-settled status but who also have a right of permanent residence under the Agreements. The Home Office has provided further clarity for these citizens. The eligibility criteria for permanent residence are set out in the Home Office statement which can be found here.

Obtaining settled status remains the easiest way for a person to prove their right to remain in the UK indefinitely.  From this month, the Home Office will be introducing a process to automatically convert as many eligible pre-settled status holders to settled status as possible, even if they have not made an application for this to happen. This will help to align citizen’s EUSS status with their underlying rights under the Agreements.

The Home Office will continue to first extend pre-settled status by five years shortly before it is due to expire if the holder is yet to obtain settled status.  After pre-settled status is extended, the case will undergo checks on eligibility for settled status and, if this is confirmed, the citizen will be granted settled status and their digital status will be updated automatically. Pre-settled status holders will be notified at key points throughout the process and so will not need to take any action.

Chief Executive of the IMA Miranda Biddle said: “We welcome this information from the Home Office about how it is ensuring that no eligible citizen or their family member loses access to their rights.

“We have always been clear that any changes implemented to the EUSS need to provide clarity and practical resolution for citizens which enables them to continue to live and work in the UK, broadly as they did before Brexit.

“We also encourage all citizens to check that their digital status is recorded correctly in their UK Visas and Immigration account, in light of any changes the Home Office has notified to them.”

The IMA will continue to ensure citizens are having their rights upheld in other related areas and will continue to engage with the Home Office and gather information from stakeholders to help inform any actions. Any work will be captured on our issues log.

This includes any issues relating to curtailment, where the Home Office cancels pre-settled status because the citizen no longer meets the requirements for it (for example, if their pre-settled status was dependent on a family relationship with an EU or EEA EFTA citizen and that family relationship has now ended without the right to reside being retained).

Anyone facing difficulties accessing their rights is encouraged to contact the IMA for support. Visit the IMA’s website for more information on the rights of EU and EEA EFTA citizens and their family members who have applied to the EUSS.