Can Your EU Settled Status Be Revoked?
With the background of Brexit and concerns over the future plans of the Home Office, it is understandable that some with EU Settled Status may worry their right to reside in the UK could be revoked. After all, having migrated to a new country, it is important to know that settled means settled, and there is no mechanism that means this can be taken away from you. In this article, we will explain what is meant by EU Settled Status, the difference between Pre-Settled status and Settled Status, whether either can be revoked, and if so, on what basis.
What Is The EU Settled Status Scheme?
The EU Settled Status Scheme (EUSS) was implemented in 2019 as a way of enabling EU, EEA, and Swiss nationals living in the UK to acquire residence rights, meaning that they can remain after 30th June 2021 (the final cut-off date for applying under the scheme). In order to acquire Settled Status, applicants will need to be residing in the UK before the end of 2020.
There are two levels of status granted under the EUSS; Pre-Settled Status and Settled Status. Pre-Settled Status is given to applicants who have been living in the UK for less than five years, Settled Status is granted to those who have been in the country for five or more years. Migrants with full Settled Status have permanent residence rights to live in the UK, whereas those with Pre-Settled Status only have limited leave to remain but have a further five years to meet the threshold for Settled Status. As such, there is a significant distinction between the two statuses; one is permanent and one is limited, however, as we will discover, either can be removed, but only in very limited circumstances.
Can EU Settled Status Be Revoked?
Cancellation or revocation of Pre-Settled Status
Once granted, Pre-Settled Status can be lost if the holder leaves the UK for a period of two or more years. Furthermore, any incident of serious criminal offending can lead to revocation of Pre-Settled Status.
Cancellation or revocation of Settled Status
Settled Status can be lost if the holder leaves the UK for five or more years, or if they are charged with a serious criminal offence.
If the Home Office does cancel or revoke pre-settled or Settled Status due to a serious criminal offence being committed, they will be doing so on the grounds of ‘lack of suitability’.
What Is The Home Office Policy On Revoking EUSS Due To Lack Of Suitability?
In September 2019, the government published a statement of changes to the immigration rules (HC 2631) which included additions to their policy of ‘suitability’ under the EUSS. The Ministerial statement which provided a briefing on the changes stated, “We expect the vast majority of EUSS applicants to be genuine, and for there to be little need for status granted under the EUSS to be cancelled at the border or curtailed in-country. However, it is appropriate that, to safeguard the integrity of the EUSS, its status should be covered by some of the same powers as other forms of immigration leave, so that appropriate action can be taken where necessary”.
This confirms that pre-settled nor Settled Status do not provide a cast-iron guarantee of the right to remain in the UK. Revocation of either status may occur as a result of committing a serious criminal offence if the person “represents a genuine, present and sufficiently serious threat to one of the fundamental interests of society”.
Another basis for cancelation or revocation or pre-settled or Settled Status is if the Home Office discover that false or misleading statements were made when applying under the EUSS, but that discovery is made after the status has been granted. False representations may include:
- providing false documentation, or using false information in order to acquire documentation, in respect of the applicant’s claimed period of a continuous qualifying period of residence in the UK
- falsely declaring that they have been resident in the UK for a continuous qualifying period of 5 years
- falsely claiming a family relationship, dependence or retained right of residence
- that does not exist
- providing false identity and nationality documentation for an individual on whom
the applicant’s eligibility for the scheme depends
One of the concerns with this ground for revocation or curtailment is that in many cases, the applicant may not have knowingly made a false disclosure. In addition, a Home Office case officer may make a decision which is made on an incorrect understanding of the immigration rules or an incorrect application of them. That said, it is unlikely that the Home Office would act on a misleading disclosure or document unless there is an event which would trigger them to review an application.
It must be remembered that the Home Office will have processed millions of applications, and will not routinely need to review those they have granted. There would need to be a trigger which would cause them to reopen the file and review whether a false disclosure was made, such as a serious criminal offence which represents a genuine, present and sufficiently serious threat to one of the fundamental interests of society. And even then, the decision to revoke must be proportionate as defined by section 27(6) of the Immigration (European Economic Area) Regulations 2016, which states, “Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.”
If your EU Settled or Pre-Settled Status has been revoked or curtailed, or you are concerned that it may be, it is essential to seek expert assistance from immigration solicitors who can robustly defend your interests and those of your family members. Such outcomes are rare, but may become more frequent once the UK leaves the EU fully at the end of 2020.