Given all the uncertainty surrounding Brexit, the Home Office recently clarified that there will be no change to the EU Settlement Scheme in relation to those EEA and Swiss nationals already resident in the UK by the date of Brexit, whether the UK leaves the EU with or without a deal. They will still be able to apply for pre-settled or settled status under the Scheme. We have set out a brief overview of the Scheme, together with an update as to how the Scheme is progressing.
Overview
Under the Scheme, EEA and Swiss nationals and their family members who are living in the UK by the date of Brexit must apply to obtain either settled or pre-settled status in order to continue to live and work in the UK long term.
If the UK leaves the EU with a deal, they have until 30 June 2021 to apply and if the UK leaves the EU with no deal, they will have until 31 December 2020 to apply.
There are a few limited exceptions. For example, those with indefinite leave to remain and those who are Irish nationals do not need to apply under the Scheme. However, those with permanent residence must still apply.
Given the current uncertainty, we recommend that EEA and Swiss nationals and their family members already in the UK apply now for pre-settled or settled status under the Scheme.
If there is a deal, then EEA and Swiss nationals and their family members who arrive after Brexit day will also be able to apply under the Scheme provided they come to live in the UK by 31 December 2020.
Settled status
Individuals who have been ‘continuously resident’ in the UK for at least 5 years should be eligible for settled status. ‘Continuously resident’ means that the individual has been present in the UK for at least 6 months in every 12 month period. If an absence from the UK is longer than 6 months in any 12 month period, this will usually break continuity, except in very limited circumstances. If continuity of residence is broken it is unlikely that the individual will be eligible for settled status.
Once a person obtains settled status, they may be away from the UK for a total of five consecutive years. After this, settled status will lapse.
Pre-settled status
If the individual has been in the UK for less than 5 years, they should be granted pre-settled status. It is important to note that pre-settled status is granted for 5 years and, at present, it seems that this cannot be extended. It is therefore vital for individuals to safeguard their continuous residence so that they are able to apply for settled status after 5 years in the UK. They must not spend more than 6 months in any 12 month period outside of the UK.
If an individual obtains pre-settled status, employers should consider the implications of the length of any international secondments or regular business travel on that person’s future eligibility to apply for settled status. In addition, if an individual is absent from the UK for a continuous period of more than 2 years, their pre-settled status will lapse altogether.
Can applications for settled/pre-settled status be refused?
Applications may be refused where the individual is subject to deportation or exclusion from the UK or where false or misleading information or documentation was submitted in support of the application (whether or not the applicant was aware of this).
Some forthcoming changes will strengthen the Home Office’s refusal grounds. From 1 October 2019, applications may also be refused where the applicant was previously refused entry to the UK under the current system (under the EEA Regulations) or where the applicant previously held leave under the EEA Regulations, which was subsequently cancelled.
Can settled/pre-settled status be cancelled after it is granted?
The changes due to come into force on 1 October 2019 now mean that, in some cases, pre-settled or settled status may also be cancelled.
Settled or pre-settled status may be cancelled where false representations were made or misleading information or documentation was submitted when obtaining pre-settled or settled status, whether or not the applicant was aware of this. As the decision as to whether or not to grant settled status is primarily made on the basis of HMRC records, there is a risk that some people may be granted settled status even though they do not qualify for it (for example, because they spent more than six months outside of the UK but were paid by a UK company). Their leave could potentially be cancelled if this later comes to light.
The rules also allow for leave to be cancelled where the individual no longer meets the requirements under the Scheme. For example, where a family member of an EEA or Swiss national with pre-settled status is no longer considered a family member - for example, through separation or divorce from the EEA or Swiss national.
This highlights that, once granted, pre-settled or settled status is not necessarily a secure status.
How many people have applied so far?
There was a surge in applications in August following the Home Secretary’s statements on ending free movement immediately after the date of Brexit. This increase resulted in reports that applicants had technical issues with the online system. The Home Office recently announced that more than 1.3 million applications under the Scheme have been received up to 31 August 2019. Just over 1.1 applications have been concluded.
Of these, 62% of applicants were granted settled status and 37% were granted pre-settled status.
Take care if offered pre-settled status
An increasing number of EEA and Swiss nationals are being offered pre-settled instead of settled status when they apply via the App. For those who have already been living in the UK for 5 years and who believe they are eligible for settled status but who are offered pre-settled status through the online application, we advise that they do not simply accept this. We recommend that they seek legal advice before proceeding. This is because, although the Home Office has continued to state that the application process is a quick and simple one, individuals are in some cases not being offered settled status even though they are eligible for this status under the legislation.
British citizenship
EEA and Swiss nationals who have been living in the UK for 6 years or more (or 3 years or more if they have a British spouse) should also consider whether to apply for British citizenship. However, individuals should always take advice on the effect obtaining British citizenship will have on their current nationality. Some EU countries do not allow dual citizenship. For example, German nationals may only hold dual nationality if the other country of which they are a national is also an EU Member State. We understand that in the event of a no-deal Brexit, German nationals must submit their British citizenship applications before the date on which the UK leaves the EU. If a deal is agreed they will have to submit their applications by 31 December 2020.
Comment
As outlined above, one of the concerns is that, even once granted, pre-settled and settled status is not necessarily a secure status.
Given that settled status could be lost in certain circumstances, individuals who obtain settled status should seriously consider whether it is best for them to apply for British citizenship (once they are able to meet all the requirements for this).
Kerry Garcia