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Following the UK’s exit from the European Union, the EUSS provided 5.7 million EEA and Swiss citizens, together with their family members, the opportunity to continue living and working in the UK.
Under the EUSS, successful applicants would either receive ‘pre-settled’ or ‘settled’ status, based on the following residence criteria:
- ‘pre-settled’ status – limited leave to remain in the UK, usually granted where the applicant has been resident in the UK for less than five years.
- ‘settled’ status – indefinite leave to remain in the UK, usually granted where the applicant has been resident in the UK for at least five years.
Prior to the changes introduced towards the end of January 2025, individuals holding pre-settled status were required to submit a further application for settled status, upon reaching the five year residency mark. Under the recent changes, the transition from pre-settled to settled status will be automated, subject to the individual meeting the eligibility criteria.
Why?
In short, because the Court said so! In the landmark case Independent Monitoring Authority v Secretary of State for the Home Department 2022[1] the High Court sought to determine the true nature of the Withdrawal Agreement, and how this should have been applied by the government following Brexit.
In this case, the High Court found that the EUSS procedure in its previous form represented a significant breach of the Withdrawal Agreement. The Court ruled that, because there was an onus placed on the individual to apply for settled status once eligible, and to not do so would most likely result in them losing their legal status, this plainly circumvented the protection and rights afforded to EEA (and Swiss) nationals under the Withdrawal Agreement.
The Court found on two points:
- An individual cannot lose their right of residence in the UK just because their pre-settled leave has expired; and
- Provided that the conditions in Article 15 of the Withdrawal Agreement (continuity of residence) are met, a person with pre settled status will automatically acquire settlement.
Implementation – strategy and roll out timescales
The Home Office has set out its planned strategy to ensure the EUSS procedure is fully compliant with the Withdrawal Agreement terms, as follows:
- In respect of point (i) of the judgment, pre-settled status will not expire. Expiry dates have been removed from individuals’ digital immigration profiles, and cannot be viewed by employers, landlords or any other person confirming a check. Further, employers and landlords are no longer required to conduct ‘follow up’ checks where, previously, the individual’s pre-settled status displayed an expiry date.
However, the same rules continue to apply in respect of curtailment or cancellation where the individual no longer satisfies the continuous residence requirements, i.e. they must not stay outside the UK for more than 180 days in a rolling 12-month period (note, this approach to absences under the Withdrawal Agreement is more lenient than the standard approach, which uses demarcated 12 month periods, starting on the same date each year).
- In compliance with point (ii), the Home Office has introduced an automated process that will convert eligible pre-settled status holders to settled status, without the need to make a further application.
The Home Office confirmed that the updated procedure will be rolled out in phases. The first phase started in late January 2025, and the next later in the year. Therefore, eligible individuals who hit the five-year residence mark prior to the next tranche being contacted may still submit an application for settled status. There is no need to wait for the Home Office to get in contact.
Actions for eligible pre-settled status holders
In line with the roll out timetable, those reaching the five-year mark will be contacted by the Home Office to confirm they will be considering your eligibility for settled status.
To conduct the assessment, the Home Office will review records using government held information, such as tax records, to verify continuous residence, and the Police National Database to determine whether there has been any criminal conduct that would bring eligibility into question.
For those pre-settled status holders who are approaching five years in the UK, they should be proactive in ensuring personal information listed on their UKVI account, such as address and telephone contact number, is accurate and up to date to ensure the Home Office can successfully communicate when they will be considered for switching into settled status and the decision.
Thereafter, those successful will note an automatic change to their digital status to settled status, meaning they are free from immigration control and, in most cases, eligible to apply for British citizenship after one year.
Potential issues
Currently, the checks completed by the Home Office are restricted to whether the individual’s National Insurance number is/was active with HMRC or DWP for five continuous years.
Plainly, there are some immediate issues with this approach. Children, who only acquire a National Insurance number from age 16, will not be identified. Similarly, individuals who have not worked for the continuous five-year period, such as students, will not show as active with HMRC, unless they have engaged in supplementary employment alongside their studies.
Where the Home Office is unable to verify that an individual has acquired the requisite five year continuous residence, their pre-settled status will be extended for five years. However, if the individual believes that they have acquired five-years continuous residence, and can demonstrate this by way of alternative acceptable documents, they are recommended to apply for settled status outside of the automated process.
Acceptable documents could include: mortgage/lease documents, council tax bills, utility bills, bank statements or phone records (these should be accompanied by corresponding bank statements).
For pre-settled status holders who:
- Were resident in the UK by 31 December 2020; and
- Maintained continuous residence for five years
But, have since broken the conditions, before acquiring settled status, the position is less clear. The Home Office recently released a statement to detail the implementation of the Independent Monitoring Authority, which sets out that pre-settled status can be cancelled or revoked where the individual no longer satisfies the conditions of residence set out in the Withdrawal Agreement. However, the Withdrawal Agreement states that, although such measure can be taken, only where “the Secretary of State is satisfied that it is proportionate to curtail that leave”. Clearly, an important distinction, but not included in the current Home Office guidance.
We are hopeful that, as and when such cases land on the Home Office’s desk, further guidance and clarity on what may be deemed proportionate in such circumstances will be released. Until then, there is significant scope for representations to be made on the unconditional language used by the Home Office, and what should be deemed as ‘proportionate’. We anticipate that this will be applied on a case-by-case basis, at least initially.
If you have any questions, please do get in contact with Nicole Hambleton or Lynsey Blyth to discuss.
[1] R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department [2022] EWHC 3274
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