Settling the score? EU citizens’ rights after a landmark judgement

By Mariña Fernández-Reino

Last year, the Migration Observatory’s report How Secure is Pre-Settled Status for EU Citizens After Brexit? highlighted a looming bureaucratic nightmare. Residents with pre-settled status who fail to reapply to the EU Settlement Scheme (EUSS) before their status expiry date were at risk of losing their legal rights to live and work in the UK. In December 2022, a High Court judgment ruled that this policy was unlawful and last month, the Home Office confirmed that it will not appeal the ruling. The Home Office’s decision is hugely important, but what comes next is still not clear. This commentary looks at what has changed and what that may mean.

Since the opening of the EUSS in mid-2018, over 5.5 million people have received grants of status, and almost 40% (2.1 million) of those are pre-settled status holders. The EUSS intentionally differentiated between two different types of legal status based on applicants’ length of residence in the UK: the permanent and more secure settled status for people who were able to demonstrate 5 years of continuous residence; and pre-settled status, which expires after 5 years and was granted to applicants with less than 5 years of residence.

As discussed in our report How Secure is Pre-Settled Status for EU Citizens After Brexit?, the conditions and rights attached to pre-settled status are fewer than those of settled status. Crucially, pre-settled status holders have, over the course of the scheme, been expected to reapply to the EUSS to gain settled status. Under the original policy design, pre-settled status holders who do not upgrade their status before their pre-settled status expires become undocumented and lose their rights to live and work in the UK. The stakes are, therefore, quite high.

One of the main concerns of organisations representing EU citizens’ rights has been that a significant share of long-term residents with pre-settled status fail to upgrade to settled status, unknowingly becoming irregular migrants as a result. This is because many of the same factors that affected some residents’ ability to apply for the first time to the EUSS –for example, having low digital literacy or reduced autonomy—are also expected to impact their ability to upgrade from pre-settled status to settled status. Although the Home Office committed to alerting all pre-settled status holders of their need to reapply to continue living lawfully in the UK, these alerts would only be effective if people maintain the same contact details (telephone number and email address) and are able to access to them. These problems are amplified by the lack of data to identify pre-settled status holders at risk of becoming undocumented: the Home Office does not know how many pre-settled status holders are currently living in the UK nor the estimated number among those who could be considered at risk of failing to upgrade their status.

What are the implications of the judgment?

The High Court decision represents an important victory for the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) and the organisations supporting EU migrants’ rights. Some pre-settled status holders, especially those with vulnerabilities that reduce their autonomy or capacity to apply, could be at risk of losing their rights because either they are not aware of their need to reapply or they have difficulties proving their eligibility for settled status. The expected lack of face-to-face support to help these people reapply to the scheme in the future was an additional aspect of concern.

The fact that residents with pre-settled status are no longer at risk of becoming undocumented because they do not reapply to the EUSS mitigates the potential risks facing people with pre-settled status. At the time of writing, the Home Office has not yet published details about how they will implement the High Court judgment, but the plan will likely be published during the summer.

What are the options for the Home Office?

The High Court judgment ruled that pre-settled status holders should have their status upgraded after five years of continuous lawful residence in the UK. This means that these people could only lose their residence rights under limited circumstances, such as committing certain crimes, submitting a fraudulent application, or having extended absences from the UK. There are two main policy issues that the Home Office needs to decide on:

The nominal legal status of people with pre-settled status with more than 5 years of residence in the UK

The Home Office has several options, which include (1) automatically upgrading all pre-settled status holders to settled status, regardless of whether they meet the criteria or not in terms of absences or criminality convictions; (2) effectively making pre-settled status permanent by removing its expiration date, but without changing the rights and conditions attached it; or (3) requiring people to reapply to secure settled status if they want to show proof of their status to private agents, such as employers or landlords. Just because people who do not reapply for settled status will not become irregular migrants, it does not mean that the effective requirement for a second application will entirely disappear.

Enforcement of the policy on absences and criminality

Extended absences and criminality are recognised in the Withdrawal Agreement as reasons for losing residence rights. An unknown share of the 2.1 million with pre-settled status will have already lost their path to settlement due to being away from the UK for more than 6 months in any 12-month period, but it is uncertain whether the Home Office will strip these people of their residence rights.

Conclusion

While the precise details of what happens next for pre-settled status holders are not yet clear, what is certain is that the ‘cliff edge’ they were facing has become less perilous. The government’s choice now is likely to be between two main options. The first is a cheap and easy process of essentially just upgrading everyone to settled status. However, that will inevitably mean some people get settled status who might otherwise have been precluded from it, e.g. people who are no longer living in the UK. The second is a vetting process of some kind that will penalise people who do not meet the eligibility requirements for settlement and possibly those who were simply not aware of the need to reapply. This will inevitably be more complex and expensive, but the Home Office may see benefits in being able to exclude people who are ineligible due to extended absences. But in the meanwhile, the rights of residents with pre-settled status are considerably more secure.

Acknowledgement

This commentary has not undergone peer review.