EU Settlement Scheme – Settled and Pre-Settled Status

EU Settlement Scheme is the new immigration law that has been introduced as a result of Brexit, to make the transition of EU nationals and their family members from the EU Regulations into the UK Immigration rules. This was necessary, as the old immigration status under the EU Regulations was only valid until end of June 2021, and had to be changed to Pre-Settled or Settled status by applying under the EU Settlement Scheme unless someone already obtained British citizenship before end of June 2021.

We also recommend reading our recent blog article relating to helpful High Court Judgement for EU Pre-Settled Status holders.

  • Settlement Scheme applications: EEA nationals and their family members, who resided in the UK by end of December 2020, could make an application under the EU Settlement Scheme for either settled status (5 years continues residence required) or pre-settled status (less than 5 years residence) to continue live, work or study in the UK. The closing date for applications was 30th June 2021.
  • The end of June 2021 deadline for EUSS applications does not apply to the following:
    • close family members of those EEA nationals who already resided in the UK before end of December 2020, as long as the family relationship existed before 1st January 2021 (e.g. marriage registered before end of December 2020). *
    • new born children of a parent who resided in the UK before end of December 2020;
    • Home Office may also accept late applications if there was a good reason why application could not be submitted before the end of June 2021 deadline. Information on late applications can be found EU Settlement Scheme: information for late applicants – GOV.UK (www.gov.uk)

* You can find more information about ‘Joining Family Members’ on our website here.

Some useful points on who can qualify as the ‘close family member’ under the EU Settlement Scheme can be found in caselaw. As an example, you can read the Upper Immigration Tribunal decision Batool and others [2022] UKUT 00219 https://tribunalsdecisions.service.gov.uk/utiac/2022-ukut-00219 This case demonstrates that the ‘Close family member’ definition is limited to the closest family unlike the previous ‘extended family member’ definition under the EU Regulations.

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Settlement – Settled status

EEA nationals and their family member(s) who lived in the UK for a continuous period of five years are able to apply for settled status (Indefinite Leave to Remain – ILR) under the EU Settlement Scheme.

To be eligible for ILR the applicants need to evidence residence in the UK for a continuous five-year period. There is no requirement to hold Comprehensive Sickness insurance or be employed during the 5 year period relied on for the Settled Status. The requirement is to evidence the residence (i.e. presence in the UK). However, the lack of comprehensive sickness insurance or lack of employment/self-employment become relevant for the British citizenship application.

What is continuous qualifying period of residence for Settled Status

Completing a continuous qualifying period of residence generally means that the applicant has not been absent from the UK and Islands (or, where applicable, the UK) for more than 6 months in total (in a single period of absence or more than one) in any given 12-month period, throughout the period of residence relied upon by the applicant for Settled Status application.

There are some exceptions:
• a single period of absence of more than 6 months but which does not exceed 12 months is permitted, where this is for an important reason, such as
pregnancy, childbirth, serious illness, study, vocational training or an overseas posting or because of COVID-19:
o evidence to support an absence as a result of pregnancy, childbirth or serious illness might take the form of a letter or other records from a qualified medical professional
o evidence to support an absence as a result of study, vocational training or an overseas posting might take the form of a letter or other records from the
relevant educational establishment or employer
o evidence to support an absence because of f COVID-19

When continuous qualifying period of residence is broken

A continuous qualifying period is broken where the person served or is serving a sentence of imprisonment of any length in the UK and Islands (or, where applicable, the UK), unless the conviction which led to it has been overturned.
A continuous qualifying period is also broken by any of the following in respect of the person, unless it has been set aside or revoked:
• any decision or order to exclude or remove them from the UK under regulation 23 or 32 of the EEA Regulations (or under the equivalent provisions of the EEA
Regulations of the Isle of Man)
• a decision to which regulation 15(4) of the EEA Regulations otherwise refers in respect of their right to permanent residence in the UK, unless that decision
arose from a previous decision under regulation 24(1) (or the equivalent decision, subject to the equivalent qualification, under the EEA Regulations of the Isle of Man)
• an exclusion decision
• a deportation order, other than by virtue of the EEA Regulations
• an Islands deportation order
• an Islands exclusion decision

The continuous qualifying period is explained in the Home Office EU Settlement Scheme Caseworker Guidance.

Pre-settled status

EEA nationals and their family member(s) who have not lived in the UK for a continuous period of five years will be granted pre-settled status (limited leave to remain). Those who hold pre-settled status can subsequently apply for ILR after five years continuous residence in the UK. At present, following Brexit, only close family members can join the EU national under the EU Settlement Scheme provided that the family relationship existed before end of December 2020 (unless it is a new born child even if the birth was after December 2020). Close family members are defined as:

  • husband, wife, civil partner or durable partner (if relationship was ‘durable’ before end of December 2020).
  • dependent parents or grandparents.
  • children or grandchildren under 21 years old.
  • dependent children over 21 years old.

For the definition of ‘Dependency’ it is useful to look for caselaw that provides some practical insight into how the ‘Dependency’ is interpreted in real life scenarios. As an example, there is a recent Court of Appeal SHAWINDER SINGH -v- SSHD case https://www.bailii.org/ew/cases/EWCA/Civ/2022/1054.html

Retained Rights of residence

In certain circumstances those who are in the UK as family members of EU nationals may remain in the UK even if their relationship with the EU national ends. This rights to remain are the Retained Rights of Residence. We provide more information on those rights in here.

What are the immigration options if not qualified for EU Settlement Scheme

Those family members of EU nationals that are not within the definition of ‘close family members’ would need to look for other immigration options to join their EU national family member who resides in the UK. Most likely route would be the Family visas (spouse/unmarried Partner, Fiancé, Civil Partner/Same Sex Partner). However, those other visas are far more expensive and document heavy comparing to the applications under the EU Settlement Scheme.

Application process for the settlement scheme

EU Settlement Scheme applications are made online. An ID check App to verify your identity is available for EU nationals and Biometric Residence permit holders.

There is no government fee to make an application under the EU Settlement Scheme.

The processing time varies from a few days, few weeks, but in some cases it can be up to 6 months or more.

Suitability (Good Character) for EU Settlement Scheme

Rules EU15, EU16 and EU17 of Appendix EU set out when an application for Pre-settled or Settled Status under Appendix EU will or may be refused on suitability grounds. According to Home Office Suitability Guidance for EU Settlement Scheme application, the assessment of suitability must be conducted on a case by case basis and be based on the applicant’s personal conduct or circumstances in the UK and overseas, including whether they have any relevant prior criminal convictions, and whether they have been open and honest in their application.

Article 20 of the Withdrawal Agreement (WA) with the European Union sets out the circumstances when it may be appropriate to restrict the right of entry or residence of an EU citizen, a family member of an EU citizen or other persons protected by the WA.

When that conduct occurred before the end of the transition period, shall be considered in accordance with Chapter VI of Directive 2004/38/EC.

When that conduct occurred after the end of the transition period, may constitute grounds for restricting the right of residence by the host State or the right of entry in the State of work in accordance with national legislation.

WA means in particular that, in relation to any restriction of the right of residence in the UK of a person protected by the WA, their conduct (including any criminal convictions relating to it) before the end of the transition period at 2300 GMT on 31 December 2020 is to be assessed according to the EU public policy, public security and public health test, as set out in the EEA Regulations 2016, as saved, while their conduct thereafter (including any criminal convictions relating to it) will be considered under the UK criminality test (on the ground that it is conducive to the public good).

EU nationals crossing UK border post June 2021

The law relating to EU Settlement Scheme applications is becoming increasingly complex. It is important to get it right and get a successful outcome of an application under the EU Settlement Scheme in order to avoid issues when crossing UK border. There is a useful Home Office guidance on this topic EU Nationals at the Border post Grace Period. The conclusion from the Home Office guidance is that the rights when crossing the border are different to when applicants are already in the UK. Therefore, in many cases it may be better for those with pending EUSS applications to remain in the UK until the application is approved – e.g. when you do not have evidence of residence in the UK before end of December 2020.