Just before Christmas 2022, the High Court ruled against the Home Office on the legality of the two-step EU Settlement Scheme application process.

In that ruling, the High Court said that requiring EEA and Swiss nationals who have Pre-Settled Status to make a second application to the EU Settlement Scheme for Settled Status, or else risk becoming an overstayer, was unlawful.

In February 2023, the Home Office announced that it would not appeal the ruling and would implement the ruling into law.

On 17 July 2023, new Immigration Rules laid before Parliament, confirm that from September 2023 people with Pre-Settled Status under the EU Settlement Scheme (EUSS) will automatically have their status extended by two years before it expires if they have not obtained settled status.

Who is affected?

Those EEA and Swiss nationals who hold Pre-Settled Status (the five-year residence permit).

Anyone who holds Settled Status (that is Permanent Residence/Indefinite Leave to Remain) is not affected as they are already settled in the UK.

What is happening?

Those EEA and Swiss nationals who hold Pre-Settled Status currently have an expiry date for their status; usually five years from the date the status was granted.

• Current system: Pre-Settled Status holders have to make an application for Settled Status before the expiry of their Pre-Settled Status or else lose the right to live in the UK. Pre-Settled Status cannot be extended.
• New system: Pre-Settled Status will be automatically extended by two years upon expiry – meaning that the status does not in practice expire and no application needs to be made.

The Home Office will attempt to grant Settled Status automatically after five years of continuous residence in the UK if they can determine from their records that the requirements are met (i.e. no criminal convictions, five years’ residence and no absences over 180 days in any 12-month period).

They will likely use National Insurance numbers and other personal data to make this determination.

If they cannot make the determination based on the data available to them, it is likely that Pre-Settled Status holders will be invited to apply for Settled Status if they wish.

Of course, since Pre-Settled Status has a rolling two-year extension, an application for Settled Status is optional.

However, Settled Status is a prerequisite to apply for Naturalisation as a British Citizen. So, those Pre-Settled Status holders who wish to apply for British citizenship will need to obtain Settled Status (either automatically or through an application) first.

What action needs to be taken?

• Pre-Settled Status holders need take no action as extensions are automatic.
• Settled Status holders need take no action as they are already settled.
• Pre-Settled Status holders who are interested in British Citizenship should check their online accounts after five years from the date of entry to the UK to see if they have been upgraded to Settled Status automatically. If not, they should apply for Settled Status.
• Employers should continue to request right to work share codes from Pre-Settled Status holders as expiry dates approach even if they are extended automatically; the new expiry date will need to be recorded every two years.