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Brexit: The EU Settlement Scheme

28 January 2019 Brexit & EU Migration Jack Freeland

The EU Settlement Scheme opened up for a public test phase on 21 January 2019. EU citizens with a passport and their non EU family members in possession of a biometric residence permit (BRP) are now eligible to apply under the scheme. With millions of applicants now potentially eligible, we answer some frequently asked questions on the new settled status scheme.

What is the EU Settlement Scheme?

On 14 November 2018, the European Commission and UK negotiators reached an agreement on the entirety of the Withdrawal Agreement and on an outline of the political declaration on the future EU-UK relationship. The Withdrawal Agreement laid down the EU Settlement Scheme, a system for granting EU citizens residency in the UK after Brexit.

EU citizens’ who wish to remain in the UK after Brexit will be required to make an application through the EU Settlement Scheme for ‘settled status’ or ‘pre settled status.’ There is no automatic right of residence and failing to apply will mean that they end up with no legal right to live and work in the UK. Quoting from the government’s statement of intent on EU citizens’ rights published in June, the EU Settlement Scheme will mean that:

  • EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for ‘settled status’, enabling them to stay indefinitely.
  • EU citizens and their family members who arrive by 31 December 2020, but will not yet have been continuously resident here for five years, will be eligible for ‘pre-settled status’, enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status.
  • EU citizens and their family members with settled status of pre-settled status will have the same access as they currently do to healthcare, pensions and other benefits in the UK.
  • Close family members (a spouse, civil partner, durable partner, dependant child or grandchild, and dependent parent or grandparent) living overseas will still be able to join an EU citizen resident here after the end of the implementation period, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. Future children are also protected.’

Deal? Or no deal?

It is looking increasingly likely that the UK will not leave the EU under the terms of the withdrawal agreement. If there is no deal, the scheme will be less generous and those EU citizens arriving after 29 March 2019 will not be eligible to remain under the scheme.

If there is a deal, the EU Settlement Scheme will have to comply with the terms of the Withdrawal Agreement and it will cover all EU citizens arriving in the UK up until the end of the transition period on 31 December 2020.

Who can apply?

EU citizens and their family members who have resided in the UK lawfully for 5 years will be entitled to ‘settled status’ to protect their rights to reside in the UK or ‘pre-settled status’ where they have been in the UK for less than 5 years. Those who are granted ‘pre-settled status’ will then be allowed to apply for ‘settled status’ once they have completed 5 years’ lawful residence.

The substantive conditions of residence are actually more favourable than those under current EU law on free movement. Under the EU Free Movement Directive (Directive 2004/38/EC) EU citizens were only entitled to remain in the UK if they were: working; self employed; or looking for work; studying; or had sufficient resources to support themselves. Students and the self sufficient required comprehensive health insurance.

The EU Settlement Scheme does not require EU citizens to carry out any particular activities in the UK and does not require health insurance. All that is required is residence. Those who have 5 years’ continuous residence, meaning that their absences from the UK in any 12 month period to do exceed a total of 6 months, will get settled status. Those who have not yet been here for 5 years, or who have excessive absences, will be granted pre-settled status. Family members will be subject to the same conditions.

All family members who were covered by EU Free Movement law - including extended family members such as durable partners, dependant family members, and members of the EU national’s household – are covered by the EU Settlement Scheme. Members of an EU national’s household were initially omitted from the scheme, apparently in error; however following a letter from the Law Society of Scotland’s Immigration & Asylum Committee in November 2018, instigated by our Iain Halliday, the legal provisions were amended to include all family extended members.

All applicants will also be subject to criminality and security checks. On top of the normal self-declaration of criminal convictions contained in most immigration applicants, the Home Office will also carry out its own checks.

When can you apply?

On 21 January 2019, the Home Office opened up the EU Settlement Scheme under a ‘test phase’, allowing all resident EU citizens with a valid biometric passport and their family members with a valid biometric residence permit (BRP) to apply. Essentially, the scheme is now open to all resident EU citizens and their family members who hold valid identification.

The scheme will go fully live on 30 March 2019. Prior to 21 January 2019, the Home Office had already run two smaller-scale test phases. The initial limited pilot started at the end of August 2018 and involved 12 NHS Trusts and 3 universities in the North West of England. The second phase of the pilot began on 01 November 2018, running through to 21 December 2018, and included staff in higher education, health and social care sectors.

The Home Office reported positive feedback from pilot users on the ease of the application process (around 95% of applicants who provided feedback commented that they found the application process easy to complete, taking approximately 15-20 minutes). Despite this, there were numerous reports of users experiencing a variety of problems when trying to complete their application during the pilot stage. An application could only be filed using the Home Office ‘app’ which only works on android phones, and not on iPhones, creating widespread accessibility problems. Users further reported that the passport chip scanner did not work on certain phones, and the app did not appear to work abroad.

The Home Office admitted that there were still bugs in the app and that the objective of the pilot phase was to identify and fix these before the system goes fully live on 30 March 2019.

How to apply?

Under the current test phase of the scheme, applicants must first provide evidence of their identity by uploading an ID card or passport to the Home Office ‘app’ which currently only works on Android smartphones with the correct software. If you don’t have access to a compatible Android smartphone, you cannot currently apply. The ‘app’ will then ask the applicant to scan and photograph their face as part of these initial identity checks.

After completing the identity checks, the applicant must then continue their application online. The online application will require an applicant to input details of their residence UK and criminal convictions. It is not possible to initiate an application online at this stage, although it is expected that this will be possible from 30 March 2019. From this date applicants will be able to apply online and post their passport to the Home Office for their identity to be verified.

The Home Office will verify an applicant’s residence in the UK through an automated check of UK tax and benefits records using the applicant’s national insurance number. If the Home Office are unable to verify that an applicant has continuously resided in the UK for five years without absences of more than 6 months in a year, the applicant can provide the Home Office with scanned documents to prove their residency. If an applicant does not have any documentation to prove continuous residence, they will be granted pre-settled status.

Once a decision has been made, applicants will receive a decision by email confirming their status. The status will be electronic; no physical document will be issued. It is not clear yet how long an applicant should expect to wait to receive a decision during the ‘test phase.’ Feedback from the initial pilot reported that 69% of successful applicants were decided within three working days and 81% within a week. However, with so many more migrants now eligible to apply it is unlikely that decisions will be made within these timeframes.

Applications for settled status were originally meant to cost £65 for adults and £32.50 for children, and be free for those EU nationals who already have permanent residence in the UK. However, only hours after the ‘test phase’ was opened on 21 January 2019, Theresa May announced that all fees would be scrapped and applications for settled or pre-settled status would be free. During the test phase however, the fees remain in place and applicants must pay the fee, though they should receive a refund sometime after 30 March 2019.

Does it work?

Back in June 2018 the Home Secretary, Sajid Javid, insisted that the application process would be ‘simple’ with decisions being made ‘very quickly.’ The initial pilots of the settlement scheme in 2018 scheme made obvious that this wasn’t necessarily going to be the case, with users reporting glaring errors and bugs with the application system.

Anyone who has attempted to make an application in the past week will be fully aware that these issues have not been ironed out for the implementation of the ‘test phase.’ Users are still reporting numerous issues with the Home Office ‘app’ and in many instances applicants have been unable to automatically verify their 5 years continuous residency through the Home Office checking system.

Whilst it remains to be seen whether the full application process will be as seamless as the government proposes, testing of the EU Settlement Scheme pilot and ‘test phase’ provides some early indicators as to the problems that may be anticipated.

What if I already have Indefinite Leave to Remain or Permanent Residence?

If you currently hold Indefinite Leave to Remain (ILR) or Permanent Residence, then you can apply to transfer to settled status. Whilst those who have Permanent Residence are required to trade in for ‘settled status’, it is optional for ILR holders as they already hold UK (rather than EU) immigration status.

However, those with ILR might want to consider making the switch. Those who hold ILR are permitted to be absent from the UK for up to 2 years continuously before they lose their status whereas those who are granted ‘settled status’ are permitted up to 5 years continuous absence from the UK before they lose their status (although the legislation governing the loss of status through absence has, at the time of writing, not yet been changed to take this differential treatment in to account).

If you are currently eligible to apply for Permanent Residence but have not yet done so, and you intend to apply for British citizenship, it is still advisable to make this application before the EU Settlement Scheme takes over. This is because you will need to show that you acquired Permanent Residence one year before the date of your application for British citizenship (unless you are married to a British citizen). If you wait until the new system comes into place, you will need to wait 12 months after being granted settled status to apply for British citizenship, irrespective of how long you have already lived in the UK (unless you are married to a British citizen). Permanent Residence can, in contrast, be retrospectively backdated to show that you obtained Permanent Residence some years ago, if you can evidence this. There is still likely enough time to make both a Permanent Residence and a citizenship application before 30 March 2019.

On the other hand, if you do not think you will be able to prove your eligibility under the permanent residence scheme (which has stricter eligibility requirements such as the necessity for students to have held comprehensive sickness insurance during their studies) then it is advisable to wait to make an application under the EU Settlement Scheme.

Comment

To come into force, the Brexit deal requires approval by, in sequence, the UK cabinet, an EU summit, the House of Commons and the European Parliament. However, Theresa May has guaranteed that the rights of EU citizens living in the UK will be guaranteed even in the event of a no deal, and the current requirements prescribed by the EU Settlement Scheme are not subject to any substantial change. It is, however, important to keep in mind the deadlines for applying in the case of a deal and a no deal scenario. Every EU national and their family members will need to make an application before the deadline of 30 June 2021 if a deal is reached. If no deal can be agreed and UK leaves without a deal, the deadline will be 31 December 2020, at the end of the transition period.

For EU nationals, or their family members, who are not yet in the UK the deadlines are also variable. If a deal is reached the all EU citizens and their family members who started living in the UK before 31 December 2020 will be eligible to apply under the EU Settlement Scheme. If no deal can be reached then the deadline will be 29 March 2019. The same deadlines apply for those who are not yet family members of an EU citizen, for instance unmarried partners.

The government has promised to deliver a system that will be simple, quick to use and readily accessible. However, it is difficult not to anticipate problems in a system that is intended to be used by around 3 million citizens and will be managed by an administration which has failed to deliver and wrongly denied citizens’ their right to remain in the UK on a grand scale in recent times.

If you would like advice on the new EU Settlement Scheme or are considering making an application under the current Permanent Residence scheme, contact us for expert advice from our immigration solicitors.

 

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