Settled status: the UK government’s plans for protecting EU residence rights post-Brexit

On 21 June 2018, more than two years after the UK voted to leave the EU, the government finally published its plans to enable EU citizens and their family members to remain in the UK following Brexit (the settled status scheme). The plans derived from the ‘citizens’ rights’ aspects of the draft EU withdrawal agreement that the UK agreed with the EU in March 2018 (although they are in some ways more generous than the provisions agreed). Following the conclusion of relevant agreements in December 2018, the scheme will also apply to nationals of Switzerland or the EEA states of Norway, Iceland, or Liechtenstein.

Since June, the possibility of a ‘no-deal’ situation, where the withdrawal agreement is not signed, has risen. On 6 December 2018, the government confirmed that the planned scheme would continue even in a no-deal situation, but with some changes.

From 21 January 2019, the government has commenced a wide public trial of the settled status scheme. This is open to EU citizens who are not also British citizens, and non-EU family members who have been previously issued with a biometric residence card or permanent residence card. In the trial, EU citizens will have to show their identity via their passport; national ID cards will not be accepted at this time.

As such, there is enough information now available for people to be able to make plans to protect their residence status following Brexit.

What are the time-frames?

If the withdrawal agreement is signed:

29 March 2019: Brexit takes place. The government plans to introduce the new system for all applicants by 30 March 2019. It has been rolled out in phases, to allow for beta testing by certain groups.

30 March 2019 – 31 December 2020: the implementation period. EU citizens and their families will continue to have the right to come to and remain in the UK under EU free movement law until 31 December 2020. They will be able to register for ‘pre-settled’ or ‘settled’ status under the new system.

1 January 2021: the implementation period ends. EU citizens and their family members who have not arrived by 31 December 2020 will no longer have the right under EU free movement law to arrive in the UK to live here. Instead, they will be subject to domestic UK immigration rules (which are to be comprehensively overhauled in the light of Brexit) and will need to apply for a visa to work here.

30 June 2021: EU citizens and their family members already living in the UK by 31 December 2020 will have to be registered under the new system by this date.

If there is a no-deal situation:

29 March 2019: Brexit takes place. EU citizens and their family members resident in the UK by 29 March 2019 will still be able to apply for pre-settled or settled status. However, the current free movement regime will end, and EU citizens arriving for the first time after that date will be subject to a separate transition regime which will last until 31 December 2020. These ‘new arrivals’ will still be able to enter the UK and work and study largely without restriction, but they will have to apply to the Home Office for a 3-year visa if they wish to stay longer than 3 months on each occasion. They will not be eligible for pre-settled status, and will have to apply under the new post-Brexit Immigration Rules if wish to remain here at the end of their three year visa.

30 December 2020: Deadline for settled status applications. All EU citizens and their family members who were resident in the UK by 29 March 2019 will need to have applied for settled or pre-settled status by this date.

Who will be able to apply under the new settled status system?

There will be two types of application for those already resident in the UK (*):

  1. Pre-settled status: for those who are resident in the UK by 31 December 2020 (or 29 March 2019, in a no-deal situation), but have less than 5 years residence here. Once they have been here for 5 years, they’ll be able to apply for settled status.
  2. Settled status: for EU citizens and their family members who have lived in the UK for at least 5 years (and not been absent for more than 6 months in any 12-month period, with some exceptions). Criminality checks will apply. Those who already have an EEA Permanent Residence (PR) document will be able to easily switch into the new system, with just criminality checks, as long as they have not spent more than 5 years outside the UK since acquiring PR.

How will the new system work?

The UKVI has designed a technology-based application process. Applicants will be able to use an app on mobile devices to scan in their ID card/passport and to have their photo taken. The document-reading aspect of the app is currently limited to Android devices with Near Field Communication.

The UKVI will check applicants’ records with HMRC and DWP as a first step to verify their 5-year residence in the UK. Applicants will also be able to upload documents such as employer letters or bank statements to prove any periods of residence not already confirmed by HMRC or DWP. The UKVI will check applicants’ criminal records and those with serious criminal convictions may be refused.

Non-EU national family members will have to give their biometric details as part of the process, if they have not already done so when being issued with a previous biometric EEA residence card.

Once the application is approved, an EU citizen will be issued with an electronic record of their status, rather than a physical document. Non-EU family members will also be issued with a biometric residence permit, if they do not already hold an EEA biometric residence permit.

What will the fees be?

The government has reversed its previous position and these applications will now all be free.  Applications during the trial period will still cost £65 for adults aged 16 or over and £32.50 for children under 16 (although they will be free for those who already have PR documents or indefinite leave to remain). However, all fees paid during the trial period will be reimbursed.

Is it still worth applying for permanent residence?

It is still possible to apply to confirm PR. For many people who are eligible for this status, and wish to apply for British citizenship, this may be a good idea.

If you wish to apply for British citizenship, you can apply one year after you are deemed to have acquired PR (unless you are married to a British citizen, in which case the residence requirements for citizenship are more generous). Applying for citizenship when granted settled status only will always require a full year to have elapsed after the grant itself (unless you are married to a British citizen). So, in many cases it will be quicker to get citizenship with PR.

Please contact our immigration team on +44 (0)20-3355-9610 for more details:

– Jonathan Kingham: [email protected]

– Lesley Kemp: [email protected]

– Helen Smith: [email protected]

 

 

* There will also be provision for ‘close family members’ who were in an existing relationship with an EU citizen who falls within the scheme, but who were resident overseas on 31 December 2020, to subsequently enter the UK under the scheme. Children born on and after 31 December 2020 to parents with settled or pre-settled status should also be covered in many cases. In a no-deal situation, the relevant date will be brought forward to 29 March 2019, and there will be a deadline for applications by such family members other than new children to be made by 29 March 2022 (and the EU citizen must have settled status). Future partners/other dependent relatives will also be able to join persons with settled status before 31 December 2020, in a no-deal situation.