Anyone who had been in the UK for 5 years could apply for settled status, and anyone who did not have 5 years of residence could apply for pre-settled status. Originally those with pre-settled status were required to “upgrade” their status to settled once they reached 5 years of residence, otherwise they risked losing residence rights in the UK.
From September 2023, the Home Office began automatically extending permission for those with pre-settled status by two years.
What are the changes?
The most recent changes announced by the Home Office include:
- The introduction of a five-year automatic extension to pre-settled status, which is an increase from the previous two years.
- The removal of pre-settled status expiry dates from the digital profiles of online checking services for Right to Work.
- The removal of the requirement for employers to carry out follow-up checks once pre-settled status has been initially determined.
Holders of pre-settled status will also no longer lose their status if they reside abroad for two or more years, which previously has been the case. Instead, the period will be the same as for holders of settled status and status will only be lost if the person resides abroad for five or more years.
The introduction of these changes to the EUSS should ensure that holders of pre-settled status under the scheme can easily provide their rights without fear of losing their rights for not following the correct administrative steps. Also, it clarifies employers who are required to check immigration status.
These changes to the EUSS are not surprising. The changes were necessary to implement the High Court judgment in Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) v Secretary of State for the Home Department [2022]. It was held that an individual who is granted pre-settled status should not lose the right to reside in the UK by failing to make a second application for settled status under the EUSS. The IMA has welcomed these recent changes to the EUSS as the process now addresses the concerns they raised (albeit presumably too late for some status holders).
What does this mean for UK Employers?
UK employers will no longer need to carry out a repeat right to work check for holders of pre-settled status. However, it is worth noting that if an employer gains knowledge that an employee who is a holder of pre-settled status has lost the status, they will not be able to claim a statutory excuse against liability for an illegal working civil penalty. In this situation, employers would need to investigate the employee’s situation before potentially ending their employment.
Also, businesses will need to ensure that all right to work checks align with Employer’s guide to right to work checks when updated in line with these changes.
For more information on these changes and your duties as an employer, please contact our immigration team.
