An Overview of the EU Settlement Scheme
After the implications of Brexit, citizens from the European Union (EU), European Economic Area (EEA) and Switzerland (hereby referred to collectively as ‘EU citizens’) and their families who wish to live in the UK, are required to apply for a new immigration status under UK law.
The EU Settlement Scheme (hereby referred to as EUSS) has been set up to grant this status. The EUSS may grant either Settled Status (usually where you’ve lived in the UK for a continuous 5-year period, i.e., ‘continuous residence’) or Pre-Settled Status (limited leave to enter or remain in the UK for 5 years), depending on how long the EU citizen has lived in the UK.1
Under the current system, a Pre-Settled Status holder can make an online application to upgrade their status to Settled Status under the EUSS once they have completed the continuous 5-year period in the UK. Failure to exercise this means a loss of the right to live in the UK.
Applicants under the EUSS will not be issued with a Biometric Residence Permit (BRP) card and can instead, prove and view their immigration status via https://www.gov.uk/view-prove-immigration-status.
The deadline for most people to apply to the EUSS has already ended on 30 June 2021, however, this deadline does not apply to those individuals with Pre-Settled Status.
Family Members and the EU Settlement Scheme
A family member of an EU, Switzerland, Norway, Iceland, or Liechtenstein citizen, can still apply to the EUSS after the deadline provided if they were living in the UK by 31 December 2020 and they must also either:
- meet one of the criteria for a later deadline to apply
- have ‘reasonable grounds’ for not applying by 30 June 20212
Cost of the current application
There is no fee for an eligible individual making an application under the EUSS. Additionally, applicants under the scheme are not required to pay the Immigration Health Surcharge (IHS) either.
However, where an application is made within the UK, a non-EEA citizen applicant is required to enrol their biometrics and may be required to pay a fee to a commercial partner to do so, depending on the location of the centre they choose to use (several across the UK are free to use).3
Rights entitled under the EU Settlement Scheme
Those individuals who are granted Settled Status or Pre-Settled Status, will automatically be entitled to:
- work in the UK
- use the NHS free of cost (no IHS is payable)
- enrol in education or study in the UK
- access public funds, i.e., benefits and pensions (if you’re eligible for them)
- travel in and out of the UK
Latest changes to the EU Settlement Scheme
On 21 December 2022, Mr Justice Lane in the High Court in the case of Independent Monitoring Authority v Secretary of State for the Home Department4 ruled against the Home Office on the legality of the two-step EU Settlement Scheme application process.
Mr Justice Lane ruled that the EU settlement Scheme was unlawful and in contradiction to the Withdrawal Agreement between the UK and the EU. He determined that even though the UK was able to implement a system requiring individuals to apply for immigration status by a specific deadline, the Withdrawal Agreement only requires one application for residence status to be made where the host state has adopted a constitutive system.5
As it can be expected that the Home Office would normally appeal this ruling, however, surprisingly, the Home Office announced in February 2023 that they would not be appealing the ruling and would instead, be executing Mr Justice Lane’s landmark decision in the case of Independent Monitoring Authority v Secretary of State for the Home Department.
Therefore, the new Immigration Rules were outlined in Parliament on 17 July 2023, confirm that from September 2023 people with Pre-Settled Status under the EU Settlement Scheme will automatically have their status extended by 2 years before it expires if they have not obtained Settled Status.6
As highlighted above, the Home Office has emphasised that this latest change to the Immigration Rules will be automated and therefore, it is noted that the respective individual will not need to make an application to have their status extended. Instead, they will be notified of the extension directly, which can then be conveyed on their online immigration status under the EUSS.
The Home Office also intends to take steps to automatically convert as many eligible Pre-Settled Status holders as possible to Settled Status once they are eligible for it, without them needing to make an application. During 2024, the automated checks of Pre-Settled Status will establish their ongoing continuous residence in the UK. 7 The Home Office has assured that safeguards will be present to ensure that Settled Status is not wrongly automatically granted to any Pre-Settled Status holder.
Comments by Lord Murray, Parliamentary Under Secretary of State for Migration and Borders
“Automatic extension of pre-settled status ensures that many EU, other EEA and Swiss citizens and their family members in the UK can continue to make a hugely valued contribution to British society without fear of losing their immigration status by simply failing to apply for settled status”.
“The measures we’ve announced today will also enable us to continue robustly tackling spurious EUSS applications, freeing up resources for legitimate late applicants and status-holders, and delivering for the UK public”.
The range of measures outlined in the Immigration Rules in Parliament on 17 July 2023 effectively protects the integrity of the EUSS by the Home Office. This is achieved by shielding against fraud and abuse. They include changes to the way reasonable grounds for late applications to the scheme are considered. They are also closing 2 temporary transitional routes, both of which fall outside the UK’s Withdrawal Agreement commitments.8
Additionally, although still having to obtain Settled Status for British citizenship applications, the rights of approximately 5.6 million people who currently benefit from the EUSS scheme. It also aims to reduce the strain on Home Office resources. However, detailed Guidance on how the changes will operate in practice has yet to be published.9
implementation of the new Immigration Rules is a positive step towards protecting the
1 The House of Commons Library: The EU Settlement Scheme: A summary – published on Tuesday, 14 January 2020.
2 UK Government: Apply to the EU Settlement Scheme (settled and pre-settled status).
3 Home Office: EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members – published on 12 April 2023.
4 Independent Monitoring Authority v Secretary of State for the Home Department  EWHC 3274 (Admin).
5 Carla Mirallas Martinez: Important High Court judgement for those with Pre-Settled Status – published on 12 March 2023.
6 Home Office and Lord Murray of Blidworth: EU Settlement Scheme enhancements confirmed – published on 17 July 2023.
7 Home Office and Lord Murray of Blidworth: EU Settlement Scheme enhancements confirmed – published on 17 July 2023.
8 Home Office and Lord Murray of Blidworth: EU Settlement Scheme enhancements confirmed – published on 17 July 2023.