The UK’s immigration landscape has seen several changes since Brexit, with the introduction of the EU Settlement Scheme (EUSS) being one of the most significant. For those holding pre-settled status in the UK, or those seeking clarity on what this status entails, it is essential to understand the rules and recent legal changes that could affect their residency rights. In this detailed guide, we cover everything you need to know about pre-settled status, from eligibility to the application process and what it means for your future in the UK.
What is Pre-Settled Status in the UK?
Pre-settled status is a form of limited leave to remain granted to EU nationals and their family members who were living in the UK before 31 December 2020, but who had not completed five years of continuous residence in the country. It was introduced as part of the EU Settlement Scheme (EUSS), created to regularize the status of EU nationals following the UK’s departure from the European Union.
Individuals granted pre-settled status can live, work, and study in the UK, and they also retain access to public services such as healthcare and benefits. This status is valid for five years, during which time holders are expected to accrue five continuous years of residence, enabling them to apply for settled status. However, recent changes to the law have simplified this process, as we will explain in the following sections.
Do Pre-Settled Status Holders Need to Reapply for Settled Status?
Under the original EU Settlement Scheme rules, individuals holding pre-settled status were required to reapply for full settled status once they reached five years of continuous residency in the UK. Failing to make a second application before their pre-settled status expired could result in the loss of their right to live, work, and access services in the UK.
However, a landmark High Court ruling in 2023 changed this requirement. The court ruled that it was unlawful for individuals with pre-settled status to lose their rights solely for failing to reapply for settled status. As a result, the Home Office has made significant adjustments to the scheme. Pre-settled status holders will now automatically receive a two-year extension if they have not yet qualified for settled status when their initial pre-settled status expires. Additionally, the Home Office will begin conducting automatic checks on government records to determine if individuals qualify for an upgrade to full settled status.
This automated process is expected to begin in 2024. Eligible individuals will be automatically upgraded to settled status without needing to submit a second application. However, until these provisions are fully implemented, pre-settled status holders are advised to apply for settled status once they meet the continuous residence requirement.
Difference Between Settled and Pre-Settled Status
Understanding the difference between settled and pre-settled status is crucial for individuals navigating their residency in the UK. Both statuses allow individuals to live, work, and study in the UK, but there are some key differences.
- Pre-Settled Status: This is a temporary form of limited leave to remain, valid for five years. Pre-settled status holders must continue residing in the UK to eventually qualify for settled status. Absence from the UK for more than two years could result in the loss of pre-settled status.
- Settled Status: Also known as indefinite leave to remain, settled status is granted to individuals who have lived in the UK for five continuous years. Once granted, settled status allows individuals to remain in the UK indefinitely and maintain their rights even after absences of up to five years. Settled status holders can also apply for British citizenship after 12 months.
In addition, any children born in the UK to parents with settled status are automatically considered British citizens, whereas children born to parents with pre-settled status are not.
Eligibility for Pre-Settled Status
To be eligible for pre-settled status, applicants must have been living in the UK before 31 December 2020 and have not yet completed five years of continuous residence. Individuals who have already reached the five-year mark are eligible to apply directly for settled status.
Non-EU family members, such as spouses, civil partners, and dependent children, can also apply for pre-settled or settled status if they meet the residency requirements. Non-EU nationals can be eligible if they were living with an EU citizen in the UK before the relevant cut-off dates.
It’s important to note that the five-year residency requirement must be met with continuous residence, meaning that applicants should not have been absent from the UK for more than six months in any 12-month period during the qualifying period.
COVID-19 and Absence from the UK: Does It Affect Your Status?
The COVID-19 pandemic posed challenges for many individuals who had to leave the UK for extended periods. Under normal circumstances, if a person with pre-settled status is absent from the UK for more than six months in any 12-month period during the qualifying five-year residency, they lose their right to apply for settled status.
However, the Home Office issued guidance in January 2021 stating that certain COVID-related absences may be considered exceptional circumstances. Individuals who were absent from the UK due to illness from COVID or because of mandatory quarantine may be able to retain their eligibility for settled status despite the extended absence.
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Are Non-EU Family Members Eligible for Pre-Settled Status?
Yes, non-EU family members of EU, EEA, or Swiss citizens can apply for pre-settled or settled status under the EU Settlement Scheme. This includes spouses, civil partners, unmarried partners, dependent children, and in some cases, dependent parents or grandparents. The scheme also accommodates family members who may have previously been in the UK with an EU citizen but have since separated or lost that family member due to death.
In some cases, non-EU family members will need to provide additional documentation to prove their relationship to the EU citizen in their application.
How to Apply for Pre-Settled Status in the UK
Applying for pre-settled status is straightforward and can mostly be done online. Applicants need to prove their identity and residency in the UK before 31 December 2020. The key documents required include:
- Proof of identity, such as a valid passport or national identity card for EU citizens, or a biometric residence permit for non-EU family members.
- National Insurance number (for residency checks) or other documentation proving UK residence.
- Proof of relationship to the EU family member (for non-EU family members).
As part of the application, applicants will also need to upload a digital photo of themselves (a ‘selfie’).
When Can You Apply for Pre-Settled Status?
Although the official deadline for new applications to the EU Settlement Scheme was 30 June 2021, certain individuals can still apply if they meet the “reasonable grounds” criteria for missing the deadline. Examples of such grounds include illness or a lack of awareness of the scheme due to age, vulnerability, or language barriers.
Can You Apply for British Citizenship with Pre-Settled Status?
Pre-settled status alone does not allow you to apply for British citizenship. In order to become eligible for citizenship, you must first be granted settled status after five years of continuous residence in the UK. After holding settled status for 12 months, you may then apply for British citizenship, provided you meet the additional eligibility criteria, such as passing the Life in the UK test and demonstrating English language proficiency.
Conclusion
Pre-settled status is a vital residency option for EU nationals and their family members in the post-Brexit UK. With recent changes to the rules, pre-settled status holders now have more security regarding their residency rights, even if they fail to reapply for settled status. However, it remains crucial to understand the nuances of this status and how it affects your rights in the UK. For further assistance and guidance on pre-settled or settled status applications, reach out to UK Immigration Solicitors, who specialize in immigration matters and can provide expert advice on your specific situation.