Pre Settled Status in the UK

pre settled status

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Changes to the EU settlement scheme were announced by the Home Office in 2023, impacting those who had been granted pre-settled status.

In this guide, we explain what pre-settled status is and how the change in rules affects your status to remain in the UK on a lawful and indefinite basis.

 

What is pre settled status UK?

 

EU nationals and their families who were living in the UK prior to 31 December 2020 were required to apply to the EU settlement scheme (EUSS) by 30 June 2021 to regularise their legal status in the UK post-Brexit.

When making an application under the EU settlement scheme (EUSS), successful applicants under the scheme were granted either indefinite leave to remain or enter, known as settled status, or limited leave to remain or enter, known as pre-settled status, based on the length of their UK residency.

To qualify for settled status, applicants needed to show they had lived in the UK for a continuous period of five years at the time of making their application. To satisfy the five-year continuous residence requirement, they must have lived in the UK, the Channel Islands or the Isle of Man for at least six months in any twelve-month period.

Applicants who did not have five years of UK residence were granted pre-settled status.

Pre-settled status is a grant of UK limited leave to remain or enter for five years. With pre-settled status, holders can continue to live, work and study in the UK with lawful status after 30 June 2021.

Applicants could not choose which type of status there were applying for, rather this was determined by the Home Office based on checks made against the applicant’s national insurance number and documentation submitted in support of their application to verify UK residency.

Initially, pre-settled status was deemed to be temporary status, to allow the individual to attain the requisite five year UK residency at which time they should apply for full settled status. This position was ruled unlawful in early 2023, as we discuss in detail below.

 

Do pre-settled status holders have to reapply for full settled status?

 

In the event that the applicant had not accrued the requisite period of continuous residence when making their initial application under the EU Settlement Scheme, they were granted pre-settled status.

Under the scheme’s original rules, pre settled status holders were required to apply for full settled status once they had attained 5 years’ UK residency so as to remain in the UK with indefinite lawful status. If an individual failed to make a subsequent application for leave prior to expiry of their pre-settled status, they would automatically lose their right to work, study and rent a property in the UK, and to access benefits and services. They would also be liable to removal from the UK on the basis that they would no longer be classed as lawfully present.

However, in the High Court’s decision in The Independent Monitoring Authority for the Citizens Rights Agreements (IMA) v the Secretary of State for the Home Department [2022], the judge held that individuals with pre-settled status under the EUSS should no longer be required to make a second application under the scheme or face losing their rights. As such, the requirement to make a second application was deemed unlawful.

In allowing the IMA’s application for judicial review, the court agreed that it was unlawful for individuals to lose their lawful UK status, along with all the rights which accompany it, under Part 2 of the Withdrawal Agreement — as well as the EEA EFTA Separation Agreement and Swiss Citizens Rights Agreement — if they failed to apply for settled status, or re-apply for pre settled status, prior to the expiry of their existing status.

The outcome of this ruling was that:

  • a person with pre-settled status under the EUSS does not lose their residence rights if they fail to make a second application prior to the 5-year expiry date of that permission, and
  • a person with pre-settled status who acquires a right of permanent residence after 5 years of continuous residence in the UK will not lose this if they fail to make an application to the EUSS for settled status.

 

In response to the ruling, the Home Office confirmed that the requirement for pre-settled status holders to reapply for full settled status would be removed and that new legal provisions would follow. The Home Office issued new guidance in its July 2023 Statement of Changes confirming that the right to reside in the UK on the basis of pre-settled status “does not expire by virtue of failing to make a second application to EUSS“.

A further statement detailed that from September 2023, two-year extensions will automatically be granted to anyone with pre settled status who has not yet obtained settled status. This will apply by virtue of the Secretary of State’s powers under section 3(3)(a) of the Immigration Act 1971. The extension will be automatically applied to the individual’s digital status before it expires and will be confirmed to the individual directly.

It was also confirmed that at some point in 2024, the Home Office will start to conduct automated checks of government records to verify pre-settled status holders’ continuous residence. Those who meet the requirement will then be automatically ‘upgraded’ from pre-settled to full settled status, without having to make a second settlement scheme application. The Home Office also advised that safeguards will be put in place to ensure that settled status is not wrongly granted. In effect, this means that pre-settled status will be automatically converted to full settled status for qualifying individuals, without the requirement to make a further EUSS application.

Until these new provisions are put in place, pre settled status holders should continue to make an application to transfer from pre settled to full settled status where eligible and ahead of their status expiring.

 

The following guide was published prior to the closure of the EU settlement scheme to new applications from 1 July 2021.

 

What is the difference between settled and pre status?

 

Irrespective of whether you are granted settled or pre settled status you will be able to continue to live, work and study in the UK, with full access to healthcare and public funds, including benefits and pensions if you are eligible for them.

You will also be permitted to travel in and out of the UK.

However, broadly speaking, if you have been granted settled status it is expected that you will be able to spend up to five years in a row outside the UK without losing that status, whereas this is likely to be limited to two years for those with pre settled status.

You would also need to maintain your continuous residence if you wanted to go on to qualify for settled status.

Further, with settled status, any children born in the UK while you are living here will automatically be classed as British citizens, while for those with pre settled status any children born in the UK will only be a British citizen if they qualify for it through their other parent. Otherwise, these children would only automatically qualify for pre settled status.

Those with settled status may also become eligible to naturalise as a British citizen.

 

Who is eligible for pre settled status?

 

You will be eligible for pre settled status if you are resident in the UK by 31 December 2020 and you have not yet accrued five years’ continuous residence by this date.

If, on the other hand, you have lived in the UK for a period of five years or more, and your application under the EU settlement scheme is successful, you should be granted settled status, allowing you to remain living, working and/or studying in the UK for as long as you like.

EU citizens must not have been absent from the UK for more than six months in any 12-month period during the qualifying residence period. This includes absences due to the COVID pandemic, unless expcetional circumstances can be proven, such as where the absence is due to the individual having been ill with COVID or due to mandatory sola

Note that under Home Office guidance issued in January 2021, EU citizens who have been absent from the UK during the COVID pandemic for a period of more than

 

Pre settled status absence from the UK due to COVID

 

The rules require that if an individual is absent from the UK for more than six months in any 12-month period during their qualifying five-year residency, they no longer qualify for full settled status, unless exceptional circumstances apply.

The issue is whether extended absence from the UK due to the pandemic qualifies as an exceptional circumstance.

Home Office guidance in January 2021 however has stated that only in cases where the individual can show their absence was due to having been ill with COVID or due to forced quarantine will be considered as an exception to the excessive absence requirement.

 

Are non-EU family members eligible?

 

To be eligible to apply for pre settled, or settled, status under the EU settlement scheme, family members do not need to be from the EU, the EEA or Switzerland, rather they can come from anywhere in the world. These applicants are known as non-EU citizen family members.

Family members can include the spouse, civil partner or unmarried partner of an EU, EEA or Swiss citizen. You may also be able to apply if you are the dependent child/grandchild, parent/grandparent or relative of an EU, EEA or Swiss citizen, or of their spouse or civil partner.

There are also various other circumstances in which a non-EU citizen may be eligible to apply for settled status including, for example, where that individual used to have EU, EEA or Swiss family member living in the UK but they have since separated or passed away.

 

How to apply for pre settled status UK

 

To apply for pre settled status, you will need to prove that you were living in the UK by 31 December 2020. The exceptions to this are as follows:

 

  • one period of up to twelve months for an important reason such as childbirth, serious illness, study, vocational training or an overseas work posting
  • compulsory military service of any length
  • time you spent abroad as a Crown servant, or as the family member of a Crown servant
  • time you spent abroad in the armed forces, or as the family member of someone in the armed forces.

 

In most cases you will be able to submit your application online, although there are some limited exceptions, for example, for some non-EU family members, whereby applications for pre settled or settled status will need to be submitted by paper application and post.

To apply you will need the following:

 

  • Proof of your identity, such as a passport or national identity card if you are an EU, EEA or Swiss citizen, or perhaps a biometric residence permit for non-EU family members
  • Your national insurance number so that checks can be carried out of your residence based on any tax and benefit records or, alternatively, proof of your residence in the UK, including proof of continuous residence over a five year period for those of you seeking settled status
  • If you are not an EU, EEA or Swiss citizen, proof of your relationship to your family member from the EU, EEA or Switzerland.

 

During the course of the application process you will also need to provide a digital photo of your face. This can be done by way of a ‘selfie’.

 

When can you apply for pre settled status UK?

 

The EU settlement scheme is now open and is free of charge to apply. However, the final deadline to apply in most cases is 30 June 2021, or 31 December 2020 if the UK leaves the EU without a deal.

As an EU, EEA or Swiss citizen, or family member currently living in the UK, your rights will remain unchanged until then, provided that you were resident in the UK by 31 December 2020, or the date the UK leaves the EU if there’s no deal.

In the event that you will reach the five year continuous residence point prior to 30 December 2020, you may want to delay your application until then, so that if your application is successful you will be granted settled status.

 

Can I apply for British citizenship with pre settled status UK?

 

You will not be eligible to apply for British citizenship if you have only been granted pre settled status. You will first need to accrue five years continuous residence in the UK to enable you to apply for settled status.

Having been granted settled status, you will then need to live in the UK for a further twelve months before applying for British citizenship.

You will also need to satisfy the eligibility criteria including, for example, that you are of sound mind and good character, and that you have sufficient knowledge of the English language and life in the UK.

 

Pre settled status FAQs

 

What does pre settled status mean?

Pre settled status means your stay is limited to five years in the UK. This is to allow you to attain the requisite five years of continuous residence to qualify for full settled status.

What is the difference between settled and pre settled status?

Both settled and pre settled status permit holders the rights to live, work and study in the UK. However, pre settled status is limited to a period of five-years, while those with settled status are granted indefinite permission to remain in the UK, and can become eligible for British citizenship. In addition, pre settled and full settled status can be lost after 5 years absence from the UK.

How long does it take to get pre settled status?

Application processing can take between 5 working days up to month to process.

Can you lose pre settled status?

Yes, if you are absent from the UK for a period of 2 consecutive years you can lose your pre settled status. In addition, your period of 'continuous residence' resets to 0 if you spend over 6 months abroad in any 12-month period with pre-Settled Status.

 

Last updated: 18 May 2024

 

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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