EU Settlement Scheme Changes Following High Court Judgement

On the 17th January 2025, the Home Office have published an updated EU Settlement Scheme changes. This related to the impact on the High Court judgement bought forward by The Independent Monitoring Authority for the Citizens Rights Agreements. The changes surely impact EU nationals on their EUSS Status. This is funded by the UK Government, but they are an independent body.

The UK Government allowed EU nationals including their family members to apply under the scheme until 30th June 2021. The purpose of this was to allow EU nationals and their family members to apply for either leave to remain or indefinite leave.

Appendix EU Immigration Rules was introduced in line with the Immigration Act 1971, which sat out the policy law. The immigration rules are somewhat confusing given that there is separate policy law for those applying under EUSS Family Permit. This is also contained in the immigration rules, titled as Immigration Rules Appendix EU (Family Permit).

It is important to note that the laws related to the immigration policies are not changing post the judgement. The process of those being recognised through previous application, or that they have applied but due to restrictions on data access is now being simplified.

We understand there is a lot of confusion to what an applicant must do, so we hope the following should give you a simplified understanding of what have changed.

EU Settlement Scheme Changes following the judgements

Following the legal challenge, the UK Home Office have now introduced the following:

1. There is an introduction of the automation of eligible pre-settled status to the settled status scheme. Those applicants would not need to file an application under EUSS program. It must be noted that the Home Office will access information available, for example your employment records to check on whether you have been employed for the continuous periods and that you have been in the UK prior to 31st Dec 2020 without the break of residency.
2. If the Home Office are not able to change your legal status, they will get in touch and the applicant would be required to provide further information or documents, similar to your manual application to the Home Office.
3. The Home Office are yet to publish information related to those who are not meeting the EUSS requirements, including those breaking the continuous residency. This means, if you have broken your continuous residency, there may be exception policies in place, however applicants should be aware that if you fail to meet the Withdrawal Agreement requirements, it is not likely you would be allowed to extend or settle in the UK under the EUSS scheme.

Home Office checks on your status

The introduction of checks and access to personal information, the Home Office will do this if you hold pre-settled status.

There is around 5.7 million people who have status under the EUSS program, and there has been around 8.2. million applications received last September 2024.

The High Court judgement and what is the Home Office response

The judicial review application that was decided by the High Court, means the following:

1. EUSS status of a person in line with the Withdrawal Agreement whereby this does not expire if a person does not file a new application.
2. Those holding pre-settled status have had their status automatically extended for a further 5 years.
3. The Home Office are still asking those eligible to apply for EU settlement scheme, should file an application.

Qualified person (relevant EU national)

When an application is considered by the Home Office, an applicant must prove their legal status, as a worker, self-employed person, self-sufficient, student or job seeker. If you wish to apply for the pre-settled status, the application is completed online.

It would appear the Home Office will permit those who are settled, the ability to apply for British citizenship.

Extending the pre-settled status

The Home Office have confirmed on the 17th January 2025, that they are looking to automatically extend the pre-settled status of a person.

The policy appears to be somewhat conflicting, in one hand its states the automatic extension and the other, only eligible applicants, will be extended.

We advise that you take professional advice on this, and you can give us a call on 0207 237 3388. You can also send us an email at info@icslegal.com.

Application refusal under the EU Settlement Scheme Changes

A number of applications are being refused by the Home Office for either pre-settled status or settled status. Some of the most commons grounds of refusals are:

1. Not in the UK prior to Brexit, which is the 31st December 2020. This is treated as the specified date.
2. Break of continuous residency. If a person is outside of the UK more than 6 months, they would lose their legal status. However those spending 2 years outside of the UK risk losing that status.
3. Persistent offenders including conduct and character issues, risk of being revoked status and being deported from the UK.

Those who have been refused and have appealed against the decision, are advised to continue with that process. The administrative changes are not likely to impact the outcome of this.

Temporary legal protection following an application under EUSS

Home Office have agreed post the judicial review to ensure all matters are considered appropriately and that those who have made either in-time or late application are allowed to remain in the UK until a decision is made.

1. Right to work and conditions to live in the UK will be confirmed by the Home Office.
2. You should have received a certificate of application, confirming your rights.

Children British Nationality rights

If a child was born in the UK on or after 1st July 2021 to a parent holding EUSS status can be a British citizen automatically. Where the child is not British by birth, they can apply to become a British citizen.

However if the child is not entitled to British citizenship, then the child must apply for the EUSS immigration program.

Apply for EU settlement scheme immigration program post deadline

The Home Office have been either rejecting or refusing applications for those who have either filed a delayed application or was not in the UK before the 31st of December 2020. The new 90 days rules are implemented.

You can do the following:

1. Make legal submissions as to the reasons why there is a delayed application.
2. Evidences must be filed to explain the submissions.

The Home Office does publish relevant details as to why an application could be delayed.

Impact on organizations and employers

The Home Office have advised that organizations or employers should check a person’s right to work. This can be done in various forms, including the employer checking service.

You can use the Home Office view and prove immigration status code