2023 is going be to a busy year for the Home Office: not only has it promised to substantially clear the backlog of pending asylum claims, but August 2023 marks five years since the EU Settlement Scheme (EUSS) was opened for applications. 

This is very significant – for many of the estimated two and a half million people in the UK who hold pre-settled status, their five-year period of limited leave to remain in the UK under the EUSS will expire in the second half of 2023. Before it does, they will need to make an application for settled status to secure their continued right to live in the UK. We, therefore, believe that the Home Office is likely to receive a very large number of applications this year, potentially resulting in delays in the decision-making process.

We commented at the end of December on the new High Court ruling which stated that the requirement for holders of pre-settled status under the EU Settlement Scheme to apply to upgrade to settled status was unlawful. Unfortunately, there is no further clarity on this, and the rule remains that those with pre-settled status must make a new application before their leave expires to continue their lawful residence in the UK.

With the Home Office under pressure to deal with a large backlog of asylum applications, we recommend that people with pre-settled status apply for settled status as soon as they become entitled to it, rather than close to the expiry date, in order to minimise the risk of waiting a long time for a decision, and the potential negative consequences of this. 

Here is what you need to know:

1. If you have pre-settled status, it is valid for five years from the date it was granted (unless it has lapsed or been revoked or curtailed).
2. However, you are eligible to apply for settled status as soon as you have been living in the UK continuously for five years.
3. ‘Continuously’ means that you must not have been outside the UK for more than six months in any 12-month period. But there are some exceptions to this. If you are worried that your absences may exceed the time allowed, we would suggest that you take legal advice before you make your application for settled status.
4. If you have been outside the UK for two years in that five-year period, your pre-settled status will have lapsed and you will not be entitled to apply for settled status.
5. An application for settled status is made online, following ID verification which needs to be completed on the EU Exit: ID Document Check App. It should be a straightforward process if you have valid ID, you have been working continuously, and HMRC hold records of your employment. In these circumstances, your continuous residence will be automatically checked against your HMRC records when you apply and you may not need to upload any further evidence of residence.
6. In other circumstances, where, for example, you do not have complete HMRC records or you have periods of absence which exceed six months, you will need to provide the Home Office with more evidence. This can be uploaded online. You may need to provide a detailed explanation of your particular circumstances. 
7. If your ID document has expired, you will need to obtain a new one before you apply for settled status. If you cannot do this before your leave expires, we would recommend that you take legal advice.
8. When you have made a valid application, you should receive a Certificate of Application which confirms your right to live, work, study and use the NHS in the UK while your application is pending. This can be accessed online and you can rely on it to prove your status in the UK.

If you do not know when you will be eligible to apply or you believe your application is not straightforward, if you do not have a valid ID document, or if you do not receive a Certificate of Application promptly after you make your application, we would recommend that you take legal advice on your options.