On 17th July 2023, the UK government announced a key change to the immigration rules for pre-settled status holders under the European Union Settlement Scheme (EUSS). The changes mean that as of September 2023, those with EUSS pre-settled status and who have not already obtained settled status will have their status extended automatically by a period of two years before it expires. This means that pre-settled status holders who do not submit a settled status application in time will not lose their legal immigration status.
From September 2023, individuals with EUSS pre-settled status who have yet to secure settled status will have their status automatically extended by the Home Office for an additional two years. This will ensure that anyone who does not apply to switch from pre-settled to settled status before their status expires will not face the risk of losing their lawful immigration status.
Lord Murray, Parliamentary Under Secretary of State for Migration and Borders, stated regarding the changes:
“Automatic extension of pre-settled status ensures that many EU, other EEA, and Swiss citizens and their family members in the UK can continue to make a hugely valued contribution to British society without fear of losing their immigration status by simply failing to apply for settled status…The measures we’ve announced today will also enable us to continue robustly tackling spurious EUSS applications, freeing up resources for legitimate late applicants and status-holders and delivering for the UK public.”
The Home Office has yet to clarify what will happen when the extended period of two years expires. It is important to note that pre-settled status holders will not lose their immigration status as long as they continue to meet the required conditions (e.g. no absence of more than 2 years). It is most likely that the automatic extension process will apply each time, and another two years will be granted.
According to the announcement by the Home Office, the main aim of the change is to prevent individuals from losing their immigration status simply due to a failure to switch from pre-settled to settled status.
The changes follow the decision by the High Court in the case of R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department  EWHC 3274 (Admin). In this case, the Independent Monitoring Authority for the Citizens’ Rights Agreements challenged the Home Office’s position that those with pre-settled status must make a second application to the EUSS or risk losing their legal immigration rights under Part 2 of the Withdrawal Agreement.
On 22nd December 2022, the High Court held that pre-settled status holders should not lose their right to reside if they fail to make a second application for EUSS settled status under Article 13(4) of the UK/EU Withdrawal Agreement. Residence rights under Article 13 are granted automatically under the law as long as relevant eligibility requirements are met;
“Union citizens and United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in Articles 21, 45 or 49 TFEU and in Article 6(1), points (a), (b) or (c) of Article 7(1), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC”.
Under the new process, which came into force in September 2023, the Home Office will automatically update the digital immigration status of EUSS pre-settled status holders if their status expires. As the Home Office explain, they will handle this update “seamlessly”. Once the extension has been automatically completed, a notification of the extension is sent directly to the pre-settled status holder. The announcement explains:
“The process will be automated by the Home Office and reflected in the person’s digital status. They will be notified of the extension directly. This will ensure that nobody loses their immigration status if they do not apply to switch from pre-settled to settled status”.
The Home Office has also stated its intention to take proactive steps to automatically convert eligible pre-settled status holders to settled status without requiring a separate application. It is expected that automated checks of pre-settled status holders will be carried out during 2024 to verify ongoing continuous residence in the UK. These checks will ensure that settled status is not granted to a person who does not meet all of the criteria.
The automated extension of pre-settled status is significant because it provides greater reassurance that those who do not apply for settled status will not lose their legal right to remain in the UK. It is estimated that over 2.1 million currently have EUSS pre-settled status and, hence, stand to benefit from this change in the Home Office’s processes.
Despite the reassurance that the automated extension process offers, we still recommend that pre-settled status holders do not let their immigration status expire. It is also important that pre-settled status holders continue to meet the continuous residence requirements. This includes keeping any records that prove continuous residence in case this is questioned by the Home Office. We also advise those who have held pre-settled status for five or more years to apply for settled status as soon as possible. This will avoid the need to rely on the automatic extension process and remove the risk of a retrograde change in policy in the future.
A Y & J Solicitors is a specialist immigration law firm with extensive experience with all types of visa applications. We have an in-depth understanding of immigration law and are professional and results-focused. For assistance with your visa application or any other UK immigration law concerns, please contact us on +44 20 7404 7933 or contact us today. We’re here to help!