We have previously written about the decision of the High Court in December last year that it was unlawful to require EU nationals with pre-settled status to make a further application for settled status when their pre-settled status expires.

The Home Office is now writing to all pre-settled status holders confirming the following:

1. From September 2023, pre-settled status will automatically be extended for a period of two years from its original expiry date (unless settled status or British citizenship has already been granted)
2. The new expiry date will automatically show on all pre-settled status holders’ digital status
3. During 2024, the Home Office will take steps to automatically update eligible pre-settled status holders to settled status. This will involve automated checks being carried out against government-held information to establish whether the pre-settled status holder has been continuously resident on the basis of their EU rights for five years

The benefits of applying

The Home Office makes clear in its email that the steps it will take should not stop those who are eligible to apply for settled status from making an application to the EU Settlement Scheme. 

Doing so will provide certainty and peace of mind to all those who are eligible for settled status in circumstances where immigration rules frequently change and the ‘view and prove’ service by which immigration status can be checked online is, regrettably, sometimes unavailable or inaccurate.

A grant of settled status will also mean that applicants will benefit from the more generous rules that apply to those with indefinite leave to remain.

If there are any complicating factors, such as Covid-related absences from the UK or absences for important reasons, it is, in our view, very important that an application for settled status should be submitted, rather than relying on government automated checks which may well show absences, but will not be able to account for the reasons for them. 

Elisabeth Attwood, solicitor in our Immigration, Asylum and Nationality team, comments:

It is not clear how the Home Office will deal with situations where their automated checks do not show a continuous period of residence and the applicant’s pre-settled status has already, or will shortly, expire.

In a climate where the Home Office is imposing more and more stringent immigration rules, including penalties for employing people who cannot prove their right to work in the UK, we remain very concerned that EU nationals who are lawfully in the UK may fail by an automated checking system. 

We would strongly recommend that if you hold pre-settled status and you are eligible to upgrade to settled status, you leave nothing to chance and apply now.