Following the article ‘EU Settlement Scheme: automatic extensions and potential curtailments’, published on 30 July 2024, we are now able to provide a bit more insight about current curtailment activity under the EU Settlement Scheme (EUSS), gained from stakeholder engagement with the Home Office.

Background

The Home Office has the power to curtail (which means cancel) a person’s pre-settled status under the EUSS when the person ceases to meet the rules of the EUSS (see paragraph A3.4(c) of Annex 3 of Appendix EU).

The power to curtail is a discretionary power – which means the Home Office does not have to curtail a person’s pre-settled status, but they can do. Importantly, the Home Office can only curtail a person’s pre-settled status if it is ‘proportionate’ to do so.

The Home Office department responsible for deciding whether to curtail a person’s pre-settled status, is called the ‘Status Review Unit’. The Status Review Unit can consider whether there may be grounds to revoke a person’s pre-settled status for other reasons, including where the Home Office has established that a person used deception in order to obtain the status. For the purposes of this article, we are just looking at the Status Review Unit decisions on whether there are grounds to curtail pre-settled status because the person has stopped meeting the requirements of the rules.  

The policy guidance that is applied by the Home Office in respect of the curtailment of pre-settled status, sets out the circumstances in which cases can be reviewed by the Status Review Unit on the grounds of a person ceasing to meet the requirements of the EUSS rules. Those circumstances are where both:

• there has been a legal termination of a marriage or civil partnership (either the leave holder’s or that of a relevant EEA citizen family member)
• following that divorce / dissolution, the person no longer satisfies any of the eligibility criteria under Appendix EU

So it can be seen from this current policy that is it family members, and in particular spouses, who are at risk of having their pre-settled status curtailed when they no longer meet the requirements of the EUSS rules.

As far as the authors are aware, the Home Office has not yet implemented a policy of curtailing pre-settled status of EU citizens who cease to meet the requirements of the rules because they have broken the continuity of their residence by spending too long outside the UK. The Home Office may still do so in future.

Triggers for a status review

The cohorts of people currently affected by Home Office policy to curtail pre-settled status on grounds of ceasing to meet the requirements of the rules are:

1. Spouses of EU citizens who were granted pre-settled status because of a marriage and where that marriage has since ended in divorce.
2. Unmarried partners of EU citizens who were granted pre-settled status based on a relationship that has since broken down.

Given the focus on family members, in particular spouses / partners, Rights of Women has expressed concern to the Home Office about the disproportionate impact on victims of domestic abuse.

The Home Office needs to be made aware of a person’s change of circumstances in order to review their status. There are two ways that are likely to trigger a status review of a person with pre-settled status as a spouse / partner:

The first is where the status holder, or their sponsor, has sent the Home Office a notification about the separation or divorce (see information on gov.uk).

In Rights of Women’s experience, although there is no known obligation to do so, it is common for sponsors to send notifications to the Home Office in an attempt to have their former partner’s leave curtailed. The Status Review Unit has access to all the notifications sent to the Home Office over many years and so it may be that a notification sent months, or years ago, could still lead to curtailment action.

The second way the review can be triggered is set out in the policy guidance which makes clear that Home Office caseworkers can make referrals to the Status Review Unit where they believe a person no longer satisfies the EUSS rules. For example, this could happen if a pre-settled status holder makes another type of application e.g. a settled status upgrade application.

The Home Office has recently assured stakeholders that there is not currently any connection between a person receiving an automatic extension of pre-settled status and their status being reviewed. The Home Office states that the automated process is not, at this time, a trigger for a person to have their status reviewed. It is yet to be seen if this approach may change in the future.

Tips for pre-settled status holders after relationship breakdown

After relationship breakdown, where a person’s pre-settled status was granted on the basis of a family relationship, a person should always get immigration advice to understand the impact of the relationship breakdown, and any potential future divorce (where applicable), on their status. Given the Home Office has the power to curtail pre-settled status, it is important for pre-settled status holders to understand whether this power could be used against them.

Free immigration advice on the EU Settlement Scheme is available, for example from this list of organisations. Rights of Women has a free specialist advice service for victims of domestic abuse.

A person granted pre-settled status as an unmarried partner may be at risk of curtailment as soon as their relationship has broken down. A person granted pre-settled status as a spouse may be at risk of curtailment after a divorce has concluded.

There are EUSS rules that allow spouses / unmarried partners to keep their status even after divorce / relationship breakdown (known as ‘retained rights’), including where there has been domestic abuse. It is important a person gets advice on the retained rights rules and whether they apply in their case, as well as what information the Home Office already has to enable them to recognise any rules that apply.

All pre-settled status holders should make sure their UKVI account contact details are up to date. If the Home Office decides to review a person’s status, or decides to curtail their pre-settled status, they will write to them by email using the email address currently registered as the contact email on their UKVI account. If a person misses an email from the Home Office, it could lead to their pre-settled status being curtailed without their knowledge.

It is never necessary for a pre-settled status holder to make a repeat application to the EUSS, even after divorce – there is no obligation to apply to the EUSS again. However, there are situations in which a person may choose to make another EUSS application because it is in their interests to do so or because it is their preference to do so.

For example, some people choose to make a repeat application to the EUSS after their divorce, so they can prove to the Home Office again that they still meet the requirements of the EUSS rules. Making a repeat application can sometimes have benefits, including that it puts the Home Office on notice of a change of circumstances and the basis on which a person continues to qualify for status therefore minimising the risk of potential curtailment action.

For particularly vulnerable individuals, a repeat application can also be an opportunity for support workers to assist with gathering and submitting relevant evidence which could also make it easier for them to obtain settled status in future. A repeat application after divorce, or after an unmarried relationship breakdown, would also be an opportunity to free an individual from having their immigration status linked to their ex-partner.

In Rights of Women’s experience, which focusses on supporting victims of domestic abuse, given the prevalence of abusive spouses seeking to cancel their victims’ immigration status, making a repeat application can be important to a person’s feeling of security.

If the Home Office is reviewing a person’s pre-settled status and they need more information to make a decision, they may write to the person by email asking for information or evidence. A person may receive one of these emails unexpectedly and would need to take swift action to deal with it. The Home Office often gives only 14 days to respond so if a person needs more time than that, they should email the Home Office to ask for more time.

Many people will need help to understand the Home Office email, including seeking legal advice to respond to it. Given the tight frame provided by the Home Office, many individuals could find themselves in a vulnerable position, so we would expect the Home Office to grant an extension of time to enable people to properly respond.

In response to the Home Office, if a person still meets the requirements of the rules, they should explain this and provide relevant evidence. If a person no longer meets the requirements of the rules, they should still provide any information or evidence that would explain to the Home Office why it is not ‘proportionate’ to curtail their pre-settled status.

Finally, if a person receives an email from the Home Office with a decision that their pre-settled status has been curtailed, they will have a right to appeal against the Home Office decision. They will have only 14 days from the date of the Home Office decision to make an appeal. As long as an appeal is made in time, a person who has had their pre-settled status curtailed will be able to keep their rights and status during the appeals process.

This article was co-authored by Carla Mirallas Martinez, Solicitor, Carter Thomas Solicitors.