What’s the news?

The Home Office was successfully challenged last year on matters pertaining to pre-settled status under the EU Settlement Scheme. As a result, on 21 May 2024 the Home Office announced the following changes for holders of pre-settled status:

• When the Home Office automatically extends pre-settled status, this will be for five years instead of two;
• The expiry date will be removed from the digital status that employers, landlords and letting agents see when carrying out right to work and right to rent checks (noting that right to rent checks are required in England only); and
• Employers, landlords and letting agents will no longer be required to carry out repeat right to work/right to rent checks for pre-settled status holders.

Regulations have also been implemented confirming that pre-settled status will only lapse after an absence from the UK of five years (or four years, in the case of Swiss nationals and their family members), instead of two. This reflects the fact that some pre-settled status holders may have acquired settled status under the Withdrawal Agreement but this may not yet have been formally recognised by the UK Government through the grant of settled status following an application. The Home Office intends to put measures in place during 2024 to facilitate the conversion of eligible pre-settled status holders to settled status without the need for them to make an application, however this process is not yet available.

It is important to note that these changes do not affect the requirement for a pre-settled status holder to have five years’ continuous residence in the UK to acquire settled status. Continuous residence is defined as absences from the UK of less than six months in any 12-month period. There are certain exceptions to this, for example where a person has a single absence of up to 12 months for an ‘important reason’ such as pregnancy, childbirth, serious illness, study, vocational training or an overseas work posting. An absence may also be ignored where this falls within the Home Office’s COVID-19 absences policy.

The Home Office may refuse an application for settled status and/or cancel pre-settled status where continuity of residence has been broken. However, if the Home Office does not consider this to be proportionate, they do not have to. The Home Office can decide to either allow the pre-settled status holder to proceed to settlement if they have completed five years’ continuous residence since continuity was broken, or allow them to keep their pre-settled status and proceed to settled status once they have completed five years’ continuous residence.

Why is this of interest to UK employers?

These changes will mean UK employers will not need to carry out a repeat right to work check for a holder of pre-settled status. However, if an employer comes to know an employee has lost their pre-settled status (for example if the employee confirms their pre-settled status has been cancelled, or it lapses), they will not be able to claim a statutory excuse against liability for an illegal working civil penalty.

What are the next steps?

The Home Office will need to make changes to its internal systems and underlying regulations to implement the changes to right to work and right to rent checks. Once this happens, the Employers' guide to right to work checks and the Landlord's guide to right to rent checks will be updated. Employers, landlords and letting agents should carry out online checks in line with the new guidance.

If you have any queries about this topic, please contact a member of our immigration team.