Pre-settled status: Know your rights
This Q&A primer is the first in the “Know Your Rights” series for our Community Lawyering Programme. It provides a brief overview of the rights and challenges faced by pre-settled status holders, along with practical knowledge on how to navigate these issues. It is important for pre-settled status holders to be well-informed and proactive in asserting their rights, especially in areas where policies and legal interpretations can impact their day-to-day lives.
- What exactly is pre-settled status and its importance?
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Pre-settled status is granted to EU citizens and their family members who have not lived in the UK for five full years. It is part of the EU Settlement Scheme, designed to protect the rights of EU citizens in the UK post-Brexit. This status allows you to work, rent, use the NHS, enrol in education and access public funds like benefits and pensions.
- How has the duration of pre-settled status recently changed?
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Originally, pre-settled status was valid for five years. However, following a High Court ruling in December 2022, the Home Office announced on 17 July 2023 that, for the time being, pre-settled status will be automatically extended by two years if you have not applied for/transitioned to settled status by the expiration date. This is meant to ensure continuous protection under the Withdrawal Agreement.
- What is the process for automatic conversion to settled status?
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The Home Office plans to automate the conversion of some eligible pre-settled status holders to settled status. This involves checking your UK residency records using your National Insurance number. Hopefully starting sometime in late 2024, if you have continuously resided in the UK for five years, you may be automatically upgraded without needing a new application.
- Can I still apply for settled status even with the automatic extension?
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Yes, it is recommended. If you have lived in the UK for five continuous years, you are eligible to apply for settled status, offering more stability and rights. You do not need to wait for the automatic process; applying directly should have no effect on your status.
If your application for settled status is still being processed when your pre-settled status is about to expire, the Home Office should automatically extend your pre-settled status for two more years. This extension should be applied in the month before your current status expires. If your application for settled status is approved, it should replace the extended pre-settled status. - Do the extensions and policy changes affect eligibility for settled status?
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The core eligibility for settled status – five years of continuous residence – remains unchanged. The extensions are intended to prevent gaps in legal status but usually do not contribute to the five-year residency requirement.
- What are the main challenges in accessing benefits for pre-settled status holders?
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Pre-settled status holders often face issues accessing benefits like Universal Credit. The habitual residence test, which is a precondition for most benefits, does not recognise pre-settled status as a 'right to reside', and people with pre-settled status need to demonstrate an alternative ‘right to reside’ under legacy EEA Regulations. This leads to many wrongful benefit rejections.
- What can I do if my benefits application is rejected?
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If your application for benefits is denied due to pre-settled status, you should seek legal advice. Many decisions can be appealed or reconsidered, especially if your right to reside was not properly assessed.
- How does pre-settled status affect renting accommodation in England?
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Finding housing can be challenging due to the digital-only proof of status. Landlords might be unfamiliar or hesitant to accept digital status as valid proof, leading to potential discrimination. It is important to know and assert that your digital status is the legitimate way to prove your right to rent (via a share code). They might also be concerned about the expiry date on your pre-settled status, and be reluctant to let a property. However, if you have valid pre-settled status, you have the right to rent a property regardless of your status expiry date.
- Can pre-settled status impact employment opportunities?
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Yes. Delays in receiving or upgrading your status should not affect your ability to secure employment, but in practice it unfortunately often does. Some employers might be unsure about the long-term validity of pre-settled status or wary of hiring without settled status. This can limit your job prospects despite your legal right to work. Just as with the right to rent, if you have pre-settled status you have the right to work regardless of your status expiry date.
- How should I safeguard and assert my rights as a pre-settled status holder?
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Knowledge is key. Understand your rights under the Withdrawal Agreement and the EU Settlement Scheme. Keep records of your residence in the UK and maintain evidence of your status. Reach out to us for guidance, and consult legal services if your rights are challenged.