With all of the current uncertainty regarding the Brexit process, it is perhaps not surprising that many European nationals are still unaware how Brexit will affect them. Whether there is a deal or no deal, European nationals currently living in the UK and those arriving post-Brexit will need to take action to preserve their ability to remain in the UK long-term.
European nationals and their family members who are resident in the UK by the date of Brexit will need to submit an application under the EU Settlement scheme, which we understand is still due to open fully at 7am on 30 March 2019. This application must be made by 30 June 2021. Only those who are Irish nationals or who hold dual UK/EEA nationality are exempt from this requirement.
Regardless as to whether there is a deal or no deal, any EEA nationals and their family members already residing in the UK as at the date we leave the EU will be covered by the EU Settlement scheme. However, the immigration position in relation to EEA nationals and their family members who enter the UK after Brexit will depend on whether or not the current deal is agreed.
No deal
Even if there is a no deal Brexit, any EEA nationals already residing in the UK by the date of Brexit will be able to remain in the UK long-term under the new EU Settlement scheme. The current deadline for applications under this scheme in a no deal scenario is still set to be 31 December 2020.
Importantly, even if there is no deal, EEA nationals arriving in the UK for the first time after the date of Brexit will still be able to enter the UK and live and work here. However, if they want to remain in the UK beyond 3 months, they will need to apply for ‘European Temporary Leave to Remain’ - a status valid for 3 years.
Once their European Temporary Leave to Remain has expired, these individuals must switch into a different immigration category or they will need to leave the UK. Unfortunately, if there is a no deal, it is likely that a number of Europeans nationals who arrive after Brexit may not qualify to remain here long term under new immigration rules due to come into effect in late 2020/early 2021. This is especially the case if they work in a low skilled role or earn less than £30,000 per annum.
Deal
If the draft Withdrawal Agreement does go through, there will continue to be free movement for EEA nationals and their family members until 31 December 2020.
This means that EEA nationals entering the UK after Brexit but by 31 December 2020 would also be able to remain in the UK long-term under the EU Settlement scheme.
Under current proposals, only those EEA nationals arriving in the UK on or after 1 January 2021 would be subject to the new post-Brexit immigration regime and free movement will cease then.
What status do I apply for – settled or pre-settled status?
Those EEA nationals (and their family members) who are covered by the EU Settlement scheme and who have been residing in the UK for 5 continuous years before the relevant deadline (i.e. before 31 December 2020 if there is no deal or 30 June 2021 if there is a deal) should be eligible to apply for settled status once they have been here for 5 years.
If an individual has been residing in the UK for less than 5 continuous years they must apply instead for pre-settled status. After residing in the UK for 5 continuous years, they will then be able to apply for settled status. Continuous residence generally means that the individual has spent at least 6 months of each year residing in the UK (though there are some exceptions to this).
If an EEA national already holds an EEA Permanent Residence document, they will also need to apply under the EU Settlement scheme to convert their current Permanent Residence document into settled status. This will not apply if they have obtained British nationality by the time of the relevant deadline.
Process for applying under the EU Settlement scheme
We understand that, despite the delay to Brexit, from 30 March 2019, applicants should be able to access the online application form using a computer, tablet or mobile phone.
Applicants will need to provide evidence of their identity and this can be done in various ways:
- For those with access to an Android device (phone or tablet) they can download the EU Exit: ID Document check app and upload their passports;
- Send their original passports by post; or
- Attend an appointment at one of the centres that will provide a scanning service.
In most cases, applicants will only need to provide their National Insurance number and automated checks will confirm their residency in the UK. In some cases these checks may not establish the person’s residency in the UK (e.g. if they have not worked for the entire period or have not received benefits.) The applicant will be notified at the time of submitting the online form whether or not they will be considered for settled or pre-settled status. If the applicant is told that they are being considered for pre-settled status but they have been living in the UK for at least 5 years we recommend that the applicant takes advice before submitting the application.
Automated criminality and security checks are also conducted as part of the online process.
Comment
European nationals and their family members need to be considering their EU Settlement applications and when best to submit them. This is particularly the case for those where the automated checks with HMRC and the Department of Work and Pensions are unlikely to confirm their residency in the UK. This could be the case for stay at home parents or those who have been out of work. In those cases, applicants may need to take advice and submit additional documents.
We recommend that individuals seek advice and take action as soon as possible to preserve their long-term ability to remain in the UK. If EEA nationals and their family members fail to apply for settled status or pre-settled status or for European temporary leave (in the event of no deal) by the relevant deadline they risk being in the UK unlawfully. This may leave them unable to work or to hold a UK driving licence or to have a UK bank account.
Kerry Garcia
Jackie Penlington