Home Office decides not to appeal landmark EU Settlement Scheme judgment

17 February 2023

Just before Christmas 2022, the High Court ruled against the Home Office on the legality of the two step EU Settlement Scheme application process.

In that ruling, the High Court said that requiring EEA and Swiss nationals who have Pre-Settled Status to make a second application to the EU Settlement Scheme for Settled Status, or else risk becoming an overstayer, was unlawful.

In response at the time, the Home Office declared that it would appeal the ruling meaning that a conclusion would not be reached for months.

However, in a surprise move, the Home Office has announced that it will not lodge an appeal and will instead incorporate the ruling into law.

The details of the implementation have not yet been announced, but the Home Office’s interpretation of court judgments could be a pyrrhic victory for claimants.

If I may be forgiven some speculation, a possible outcome could be that Pre-Settled Status is automatically extended without a second application and an application for Settled Status would be rendered optional.

Settled Status is still a prerequisite if an EEA national wishes to apply for naturalisation as a British citizen, so that would incentivise a lot of people to make that optional application. Settled Status might only be available to those who show they have five years’ continuous residence in the UK.

This change would effectively return a cohort of pre-Brexit EEA nationals to the position they were in before 31 December 2020 – i.e. their rights to stay are automatic, but there are additional hurdles if they wish to become British citizens.

This is where the pyrrhic victory might be found – it could become much easier to retain Pre-Settled Status, but harder to obtain Settled Status. Further details to be released in due course.