EU Settlement Scheme

The EU Settlement Scheme is the designated route under the Appendix (EU) to the Immigration Rules for EEA nationals and their family members living in the UK before January 2021 to regularise their immigration status and remain in the UK lawfully.

Most EEA nationals had until 30 June 2021 to apply for settled or pre-settled status under the Scheme. This deadline does not apply to some family members of EEA nationals. The government has published a detailed guide to EU Settlement Scheme applications.

Regulations have been made to protect the rights of people who applied before the deadline but have not yet received a decision.[1]

Late applications to the EU Settlement Scheme may be accepted, depending on the person's individual circumstances.[2] Gov.uk provides more details.

On 6 August 2021 the Home Office announced that people who apply to the EU Settlement Scheme after the 30 June 2021 deadline will have their rights protected. The press release states that the government is working to implement this approach.

The Home Office guidance for local authorities contains detailed information about when a late application may be accepted and how local authorities can support EEA nationals and their family members.

Advice about obtaining leave to enter or remain under the UK Immigration Rules can only be delivered by a registered immigration adviser or a qualified solicitor. This includes immigration advice about applying for settled or pre-settled status under the EU Settlement Scheme. Use gov.uk to find a registered adviser.

On 14 July 2021 the Home Office published new guidance EU Settlement Scheme: information for local authorities containing more information about how local authorities can support EEA nationals and their family members with applications to the Scheme, including information on temporary protection and reasonable grounds for applying after the 30 June 2021 deadline.

The government has funded a number of organisations to provide help and support to vulnerable people applying to the EU Settlement Scheme.

People in need of help with applications to the EU Settlement Scheme can contact AIRE Centre and Coram.

Useful information is also available from Freemovement and EU Citizens' Rights.

The UK ceased to be member of the EU at 11pm on 31 January 2020.[3]

Due to saving and transitional provisions[4], the legal framework applicable to EEA nationals under the right of free movement within the EU continued to apply until 11pm on 31 December 2020.[5]

Until 31 December 2020

EU free movement continued to apply alongside the Immigration Rules.

EEA nationals and family members could establish eligibility for social housing, homelessness assistance and benefits by either:

• showing they had a qualifying right to reside under EU law

• relying on their settlement status acquired under the EU Settlement Scheme

From 1 January 2021

EU free movement ended under the provisions in schedule 1 of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 which:

• repealed section 7 of the Immigration Act 1988 – this provided for an exemption from the requirement for leave to enter or remain for 'persons exercising EU rights'

• revoked the Immigration (European Economic Area) Regulations 2016 – these determined which EEA nationals had a qualifying right to reside in the UK

EEA nationals become persons subject to immigration control and require leave to enter or remain in the UK under the Immigration rules.

Grace period until 30 June 2021

The deadline for applications to the EU Settlement Scheme passed on 30 June 2021. After 30 June 2021 provisions of the Immigration (European Economic Area) Regulations 2016, as in force on 31 December 2020, apply to determine if EEA nationals and family members are eligible for housing assistance and benefits if they have:[6]

• received pre-settled status under EU Settlement Scheme

• applied to the EU Settlement Scheme and are still waiting for a reply from the Home Office

Some family members of EEA nationals may be able to apply to the EU Settlement Scheme after the 30 June 2021 deadline.

Settled status is equivalent to indefinite leave to enter or remain in the UK under the Immigration Rules.

Applicants granted settled status are eligible for homelessness and housing assistance and come under 'Class C' in the regulations.

When priority need (or homelessness) is derived from an ineligible person, an application for homelessness assistance is treated as a restricted case.

Who can qualify for settled status

An EEA citizen may qualify for settled status if they arrived before 1 January 2021 and have since been resident in the UK for a continuous five year period. In certain circumstances, such as retirement or permanent incapacity, it may be possible to qualify for settled status before five years.

A person is continuously resident so long as they have not been absent from the UK for more than six months in any 12 month period. Exceptions to continuous residence include:

• one period of up to 12 months for an important reason (for example, childbirth, serious illness, study, vocational training or an overseas work posting)

• time spent abroad as a Crown employee, or as the family member of a Crown employee

• time spent abroad in the armed forces, or as the family member of someone in the armed forces

A person with settled status may retain that status if they leave the UK, so long as they are not absent for more than five years.

Children of parents with settled status

Any children born in the UK to a person with settled status are automatically British citizens. Children born on or after 1 July 2021 will automatically become British citizens if a parent is subsequently granted settled status, providing the parent meets certain conditions.[7]

Retired workers or self-employed persons

An EEA national may also qualify for settled status if they ceased working when they reached state pension age and either:

• they worked continuously or were self-employed in the UK for one year before they stopped working and they have lived continuously in the UK for three years

• their spouse or civil partner is a British citizen

A family member of the EEA national at the time they stopped working may also be eligible for settled status.

Incapacitated workers

An EEA national may also qualify for settled status if they ceased working in the UK as a result of permanent incapacity to work, and if either:

• they had resided in the UK continuously for more than two years beforehand

• the incapacity is the result of an accident at work or an occupational disease

A family member of the EEA national at the time they stopped working may also be eligible for settled status.

Pre-settled status is equivalent to limited leave to enter or remain in the UK under the Immigration Rules.

People with pre-settled status can apply for full settled status after five years of continuous residence.

A person will be continuously resident so long as they have not been absent from the UK for more than six months in any 12 month period. Exceptions to continuous residence include:

• one period of up to 12 months for an important reason (for example, childbirth, serious illness, study, vocational training or an overseas work posting)

• time spent abroad as a Crown employee, or as the family member of a Crown employee

• time spent abroad in the armed forces, or as the family member of someone in the armed forces

Eligibility for housing and homelessness assistance

Pre-settled status alone is to be disregarded for the purpose of establishing:

• eligibility for homelessness assistance and allocation of social housing[8]

• habitual residence for the purpose of establishing entitlement to most income-related benefit[9]

EEA nationals with pre-settled status will need to demonstrate that they have a retained qualifying EU right to reside to be eligible for assistance and benefits.

Who can qualify for pre-settled status

EEA nationals qualify for pre-settled status if they arrived in the UK before 1 January 2021, but do not have five years’ continuous residence at the time they apply.

A person with pre-settled status may retain that status if they leave the UK, so long as they are not absent for more than two years. However, they will need to maintain continuous residence in order to qualify for settled status after five years.

Children of parents with pre-settled status

Any child born in the UK to a person with pre-settled status is eligible for pre-settled status.

The Home Office and UKVI have issued detailed guidance for caseworkers considering applications under the EU Settlement Scheme. This covers:

• rights of EU, EEA and Swiss citizens and their family members

• suitability requirements

• derivative right to reside as a primary carer (Chen/Baumbast cases)

• rights of family members of a qualifying British citizen

• rights of persons with a Zambrano right to reside

Status granted under the settlement scheme is digital only. The applicant does not have a stamp in their passport or a separate document from the Home Office.

The status can be checked electronically using the Gov.uk – View and prove your immigration status service. The applicant must have their mobile phone, access to email, and proof of identity.

Download the Shelter guide How to prove settled status granted under the EU Settlement Scheme for practical information on proving settled status.

In R (The 3million Ltd) v Secretary of State for the Home Department the High Court refused permission for a judicial review of the digital-only status on the grounds of the policy discriminating against people who are elderly, disabled and against the Roma community, because the the evidence of its impact was not available at the time.[10]