Date Legislation considered: 24 April 2024
Date Legislation in force: In accordance with article 1(2) – the day after the Order is made
Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residence
What does the legislation do?
The draft Immigration (Leave to Enter and Remain) (Amendment) Order 2024 (“the 2024 Order”) amends the Immigration (Leave to Enter and Remain) Order 2000 (“the LTERO”).
The draft Explanatory Memorandum states that the purpose of the 2024 Order is to remedy an inconsistency between the LTERO and the High Court judgment in the Independent Monitoring Authority for the Citizens’ Rights Agreements, R. (On the Application Of) v
Secretary of State for the Home Department [2022] EWHC 3274 (Admin) (21 December 2022.
The judgment held that parts of the EU Settlement Scheme (“EUSS”) breached the Citizens’ Rights Agreements, finding that the right to reside under the Agreements of a person granted pre-settled status (“PSS”) does not expire by virtue of failing to make a second application to the EUSS; and that the right of permanent residence under the Agreements is acquired by a person granted PSS automatically, generally on completion of five years’ continuous qualifying residence.
Prior to the changes made by the 2024 Order, article 13 of the LTERO made provision for PSS to automatically lapse if the holder is continuously absent from the UK and Islands for more than two years. Settled Status (“SS”) generally lapses after a continuous absence exceeding five years. This results in a loss of immigration status.
Article 13 was incompatible with the judgment and the Agreements as it did not make provision for PSS holders who had acquired the right of permanent residence under the Agreements. The effect of the judgment is that holders of PSS who acquire the right of permanent residence are entitled to the same permitted absence (5 years (Article 15 Withdrawal Agreement/Article 14 EEA EFTA Separation Agreement)) as if they had SS.
Amendments have been made to the LTERO to address this. The 2024 Order has done so by allowing all holders of leave under the EUSS to be absent from the UK and Islands for a 5-year period (4-year for Swiss citizens and their family members) before their leave lapses.
The Home Office has confirmed to the IMA that updated guidance to border officials will be published soon. In the meantime, border officials have received instructions on ascertaining whether a right of permanent residence has been obtained and to consider duration of absence accordingly.
As the draft Explanatory Memorandum points out, it is important to note that the change does not affect the scope for the Home Office to cancel or curtail PSS where a person who has not acquired a right of permanent residence has ceased to remain eligible for PSS by exceeding the absences permitted by the Agreements (i.e., as a general rule, and subject to some permitted exceptions, 6 months in any 12-month period).
Comments
The IMA raises no issues of concern at this stage, however any citizen experiencing difficulties in exercising their rights is encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found on the Website.