Regardless as to whether there is a deal or no deal when we leave the EU, EU nationals and their non-EU national family members living in the UK who arrived in the UK before 11pm on 29 March 2019 will have to apply for either ‘settled’ or ‘pre-settled’ status.
However, there will be some key differences in how the EU Settlement Scheme (the “Scheme”) will be applied depending on whether there is a deal or no deal. These are set out below:
If the deal is agreed
- Free movement will continue until 31 December 2020 and the Scheme will cover EU nationals who have entered the UK by 31 December 2020; and
- The deadline for applying under the Scheme will be 30 June 2021.
No-deal Brexit
- The EU Scheme will cover EU nationals who have entered the UK by 11pm on 29 March 2019;
- The deadline for applying under the Scheme will be 31 December 2020; and
- Different rules will apply for those who enter the UK after 11pm on 29 March 2019.
Eligibility for applying for settled’ or ‘pre-settled’ status
- Settled status - EU nationals and their non-EU national family members who have been residing in the UK for 5 continuous years before the relevant deadline (i.e. before 30 June 2021 or 31 December 2020) should be eligible to apply for settled status.
- Pre-settled status – If EU nationals and their non-EU national family members have been residing in the UK for less than 5 continuous years they must instead apply 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 applicant must have spent at least 6 months of each year residing in the UK (though there are some exceptions to this).
When can applications be made?
The intention is that the Scheme will be fully open by 30 March 2019. However, the public testing phase is already open and this means that anyone who meets the following criteria could already apply for settled or pre-settled status. To apply now they must be:
- A resident EU national (but not a British citizen) with a valid biometric EU passport or ID card; or
- The non-EU national family member of an EU national but must hold a biometric residence card.
Fees
For applications submitted before 30 March 2019, a fee of £65 per adult and £32.50 per child will be charged. The Government has confirmed that any fees paid will be refunded later. No fee should be charged for applications made from 30 March 2019.
The application process
Further details about what to expect when applying online are set out below:
- Applicants download an App to an Android device.
- Applicants provide certain personal details and fill in an online application form.
- EU nationals must prove the following:
- Identity and nationality - by uploading a passport or valid national ID card using the App; and
- Residence in the UK – Applicants only need to prove the fact and length of residence. The starting point is providing their NI number for the Home Office to carry out automatic checks of data held by HMRC and DWP. For those who do not have HMRC or DWP records they have the option to upload other documents as evidence of residence.
- Criminality checks will also be carried out by the Home Office.
- Non-EU family members are encouraged to apply under the Scheme at the same time as the EU national:
- In addition to the documents submitted by the EU national, family members will also need to provide proof of their own identity, residence and relationship to the EU national.
- After all sections have been completed, the applicant will be informed whether they will be considered for settled status, pre-settled status or whether they need to upload evidence of residence. If the response from the Home Office states that the applicant will only be considered for pre-settled status they can choose to ‘accept’ this or submit more evidence to demonstrate that they are eligible for settled status. If EU nationals believe that they are eligible for settled status and are only offered the option to apply for pre-settled status we recommend individuals take legal advice before proceeding to submit the application.
- Following submission, applicants should receive a Certificate of Application immediately and then a decision letter by email.
Requirement on EU nationals to notify the Home Office to changes of their personal details
Once individuals have applied under the Scheme they will be required to keep their personal details up to date. They must notify the Home Office using an online form available on the Government website if they have changed their:
- Mobile phone number;
- Email address;
- Name; or
- Identity document.
Individuals will also need to use this form if they are still waiting for a decision and their email address or phone number changes.
In addition, if the individual’s identity document has changed (e.g. a new passport has been issued) then the individual must send this to the Home Office. This is a surprisingly onerous obligation and at present non-EU nationals are not required to do this.
Comment
We recommend that employers diarise to check in advance that all European nationals working for them have made the appropriate application for settled or pre-settled status before the relevant deadline of either 31 December 2020 or 30 June 2021, depending on whether there is a deal agreed or a no-deal Brexit.
After they have submitted their application you should also ask the employee to provide you with a copy of their Certificate of Application as evidence that they have applied under the Scheme and to send you a copy of the decision letter once they receive this.
If for any reason they only obtain pre-settled status you should diarise as to when they need to apply for settled status and check that they do so.
EU employees should also be made aware of their obligation to notify the Home Office of any changes to their personal details. Failure to do so may cause the individual issues in the future when employers or landlords carry out right to work or right to rent checks. It is likely that such checks will be introduced for EU nationals in 2021.
Kerry Garcia
Nyasha Gardner