Further details have recently been published regarding the rights of EU citizens and their family members after Brexit, including details about the process for applying for settled or pre-settled status. Broadly, EU citizens and their family members who arrive in the UK by the end of the transition period (i.e. by 31 December 2020) must ensure that they apply for settled or pre-settled status by no later than 30 June 2021. If they fail to apply by then they will be in the UK unlawfully. This is the case even if they currently have permanent residence.
Draft Withdrawal Agreement
The UK and European Union published the Draft Withdrawal Agreement (the “Draft Agreement”) (effectively the Brexit draft divorce agreement) on 19 March 2018. The Draft Agreement sets out what EU citizens in the UK should expect now and during the transitional or implementation period (which begins on 29 March 2019) and what they will have to do to continue legally living in the UK after that implementation period ends on 31 December 2020.
EU citizens and their family members who arrived in the UK before 31 December 2020 and who have continuously lived in the UK for 5 years will be eligible to apply for “settled status”. EU citizens and their family members who arrive in the UK before the end of the transition period on 31 December 2020 but who have not lived continuously in the UK for 5 years will be eligible to apply for “pre-settled status”. After 5 years’ residence they should then be eligible to apply for settled status.
EU citizens who are living in the UK as at 31 December 2020 will have until 30 June 2021 to make an application for settled status or pre-settled under the scheme. If they fail to do so they will be living unlawfully in the UK.
EU citizens and their family members with settled status or pre-settled status will have the same access as they currently do to healthcare, pensions and other benefits in the UK.
The EU Settlement Scheme
“Nothing is agreed until everything is agreed” and assuming a Brexit deal is eventually reached, the Home Office will have to operate the new scheme. Since the Draft Agreement was published in March there has been much speculation about how this will work in practice. This is not least because of the additional administrative burden that will be placed on the Home Office’s already stretched resources with around three million EU citizens, plus their family members, applying for UK immigration status under the proposed scheme.
In June 2018 the Home Office provided further details of the scheme, although the final details are subject to approval by Parliament.
How will applicants have to apply and what will they need to prove?
The government intends to phase in an online application system from later this year which should be fully open by 30 March 2019. We are told that this will be accessible through laptops, computers, tablets and phones. A paper application is also being considered.
The Home Office states that they plan to make the process “simple and straightforward”. The aim is for EU citizens and their family members to be able to successfully apply for settled status by fulfilling 3 key requirements, proving:
- Their identity;
- UK residence; and
- That they have no serious criminal convictions.
Family members of EU citizens will also be able to apply for settled or pre-settled status if they are living in the UK.
From our review of the guidance there are a few key points to note:
- If an applicant has a biometric passport or ID card (i.e. with a chip) they will be able to upload their ID documents using a smartphone app. Otherwise these documents will have to be sent by post.
- Applicants will need to attend an “application centre” to have their fingerprints and photograph taken.
- The main eligibility requirement will be continuous residence in the UK (i.e. that they have lived in the UK and are currently living in the UK). Importantly and helpfully EU citizens will not need to show that they have been exercising Treaty rights (for example, working or studying in the UK) or that they have held Comprehensive Sickness Insurance.
- For most applicants automatic checks carried out by the Home Office with HMRC and DWP will be sufficient to verify UK residence. However, those who have never received benefits or worked in the UK will need to provide further information and will be able to upload evidence of residence or to fill any gaps in government records. The guidance states that the Home Office will work flexibly with applicants to help them evidence their continuous residence in the UK by the best means available to them.
- EU citizens and family members who already have permanent residence documents will be able to switch to settled status for no additional charge (subject to criminality and security checks). The fee will be £65 for all other adult applicants and £32.50 for children under 16. Where applicants are granted pre-settled status first, from April 2019 there will be no fee to then later apply for settled status.
- The Home Office will carry out criminality and security checks in relation to all applicants over the age of ten. EU citizens with criminal convictions post-dating 31 December 2020 will have a higher risk of having their applications refused. This is because from this date any criminality will be assessed against more stringent UK immigration law (rather than current EU law).
- Evidence of the immigration status of EU citizens will be issued in digital form and no physical document will be issued. Non-EU national family members will in addition be issued with a biometric residence document.
- EU citizens with settled status or pre-settled status will be able to be joined in the UK by close family members (spouse, civil partner, unmarried partner, dependant child/grandchild, dependant parent/grandparent) who are living overseas after the implementation period ends on 31 December 2020, provided that the relationship existed on 31 December 2020 and continues to do so. They can also be joined by children born after 31 December 2020. This was an important concession given by the UK Government and means that after the implementation period ends it will continue to be far easier for close relatives to join EU citizens compared to British nationals. Close family members joining the EU citizen in the UK after 31 December 2020 will need to apply for pre-settled status within three months of arrival in the UK.
- Holders of settled status under the scheme may be absent from the UK for five consecutive years before they lose their settled status.
- Irish citizens will not be required to apply under the scheme but their non-EU national family members may wish to obtain status under the scheme.
- If an application is refused the individual will have the right to an administrative review if they applied before 30 March 2019 and the right to an appeal before a judge if they applied after 30 March 2019. Alternatively, they may make a further application provided they do so before 30 June 2021.
The statement of intent is welcome as it provides further information about the application process. However this could still be subject to some changes and it is not a complete guide. For example, there are still no details of when the online application system will be introduced and decision times on applications are not covered.
Many EU citizens and their family members continue to have questions about whether they should be applying for residence documents now or how soon they should be applying once the settlement scheme is phased in. Despite the official line that EU citizens and their family members do not need to do anything, those who are currently eligible to apply for permanent residence under EEA law would still generally be advised to do so. One of the benefits is that the process to switch to settled status should be more straightforward if they already hold permanent residence. The Home Secretary, Sajid Javid, stated “the process will be particularly straightforward for those who already hold a valid permanent residence document…” Further, applicants may be able to obtain British nationality more quickly if they apply now for permanent residence rather than waiting to apply for settled status under the new scheme.
However some EU citizens could benefit by waiting to apply under the settlement scheme, for example, they may benefit from not having to prove they had Comprehensive Sickness Insurance during the 5 year residence period if they were in the UK as a self-sufficient person or student and did not meet this requirement.