We have recently seen several cases where a person has received a ‘minded to curtail’ notice from the Home Office following the automatic extension of their permission under the EU Settlement Scheme. Below we look at what is happening in more detail and what people in this situation should do.

Background

When the EU Settlement Scheme was first rolled out, those who were granted pre-settled status received permission for five years. At the end of that period, or earlier if they were eligible, they could ‘upgrade’ their permission to settled status, if they met the requirements. There was a risk of pre-settled status holders becoming unlawfully resident in the UK if they didn’t make a further application.

Happily, there have been a number of positive developments to the EU Settlement Scheme route since its introduction. Pre-settled status no longer ‘expires’ and should be automatically extended. Originally, the extension period was to last two years, but the Home Office have announced that the extension will increase to five years.

The original Home Office announcement confirming the extension process cheerily sets out that:

‘People with pre-settled status under the EU Settlement Scheme (EUSS) will automatically have their status extended by 2 years before it expires if they have not obtained settled status.’

However, this is something of an over-simplification and, in practice, is creating a great deal of confusion, particularly among those who were granted pre-settled status as the family member of an EEA national.

Retained rights and curtailments

The automatic extension does not alter the eligibility requirements for individuals. Under paragraph EU4 of Appendix EU an individual must:

continue to meet the eligibility requirements for that leave which they met at the date of application… or meet other eligibility requirements for limited leave to enter or remain in accordance with paragraph EU14…

Indeed, under Annex 3 of Appendix EU there are a number of grounds in which permission can be curtailed including where: ‘The person ceases to meet, or never met, the requirements of this Appendix.’

As more individuals approach the five-year mark since they were granted pre-settled status, we have started to see a number of cases where the Home Office have issued ‘minded to curtail’ notifications after confirming the automatic extension of pre-settled status. Presumably, the Home Office has begun to actively review the records of pre-settled status holders who are near the end of their original five-year period.

In our experience, many of these notifications have been directed at non-EEA nationals who were originally granted pre-settled status due to their relationship with an EEA family member, such as being married, and their circumstances have since changed, such as the breakdown of that relationship.

In these cases, the individual may have a retained right of residence, depending on their circumstances. Individuals who have been granted pre-settled status before retaining rights are not required to notify the Home Office of the circumstances that have led to the change of relationship with the EEA national.

There is no requirement to make an application to vary status because an individual must continue to meet their original eligibility requirements ‘or meet other eligibility requirements’ for limited leave to remain in accordance with paragraph EU14. Meeting the retained rights provisions can be considered ‘other’ eligibility requirements.

Pre-settled status holders who have received an automatic extension may have believed that the Home Office took into account any retained rights provisions and that they do not need to take any further actions. Considering that the original pre-settled status application process was often extremely straightforward, requiring minimal documentary evidence and reviewing government held data, it is easy to think that the Home Office would make such positive decisions.

It then can come as a nasty surprise to receive a minded to curtail notification that only allows 14 days to ‘respond to this change of circumstances and provide any further information or evidence that might show reasons why your limited leave to remain should not be curtailed.’ In our experience the Home Office are often open to an extension of this period.

To only have a short period of time to provide a number of documents, in what can be a quite complex application, after their status had just been extended, can be quite distressing for applicants.

What to do

If responding to the minded to curtail notification, the strongest case must be made. Evidence must be prepared as to how the individual still meets the requirements or meets other eligibility requirements of Appendix EU and this can require documents from across the five-year period the individual has been resident in the UK.

Where the evidence has been accepted, the response from the Home Office has been surprisingly vague:

Your EU Settlement Scheme status remains valid.

We wrote to you on 21 May 2024, informing you that we are considering curtailing your Pre-settled Status due to your marriage to your EEA national sponsor/partner no longer subsisting. After receiving your response to our letter…, I have been considering whether to remove your EU Settlement Scheme status under Annex 3 of Appendix EU to the Immigration Rules.

However, after investigating your case and looking into the evidence available I have decided not to remove your status, as I am satisfied that you do not meet the criteria for curtailment…

You continue to hold limited leave to remain (also known as pre-settled status) and your existing entitlements are unaffected. You do not need to do anything further.

We had to chase the Home Office to confirm when the expiry date for our client would be and whether this would be extended, as this information is not clear in their communications.

Many individuals who fall under the category of family members who have retained the right of residence may not have applied to vary their pre-settled status during the five-year period. They are not required to do so and, more importantly, may not know that this is even an option. In our experience, the EUSS Resolution Centre used to suggest that individuals who have divorced, for instance, could take action later, which may have led to a false sense of security for some.

Conclusion

It may be safer, especially for those who qualify under the retained rights provisions of Appendix EU, to make (or start preparing) applications to vary their leave, or to apply for settled status (if eligible) before the automatic extension comes into play. As we have seen, there is a real risk that the automatic extensions can sometimes be followed by a minded to curtail notification, which may put many individuals in a vulnerable position, having a very tight timeframe to gather documents and make a case as to how they should remain in the UK.

This article was co-authored by Nick Gore of Carter Thomas.