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Immigration: What's new for EU nationals - an update on Brexit
Achieving “settled status” in the UK – phased roll-out expected
In June 2018 the Government announced further details of the new “settled status” scheme for EU nationals. Whilst these still need to be approved by Parliament, here we outline the basis on which EU nationals will be able to stay in the UK under the “settled status” scheme.
Q: The Government has confirmed that EU nationals currently working in the UK will be able to apply to remain here and will not be expected to leave when Brexit takes effect. How can I apply to remain in the UK in the lead-up to and following Brexit?
A: You will be able to make an application for so called settled status, which will allow EU nationals to stay in the UK indefinitely online. As part of the process, you will need to prove your identity and provide evidence of your residence in the UK.
Q: What will I need to prove my eligibility for settled status?
A: You will be eligible for settled status once you can prove you have resided in the UK for five years. You will need either to send away your passport/ID card, or you will be able to upload a copy of this on-line, in order to retain your documents whilst the application is being decided.
Q: Will the Government do anything to check my eligibility for settled status?
A: The Government has said they will automatically check HMRC and DWP records for proof of your residence in the UK. This is the only thing you as an EU national need to prove – i.e. that you have been living in the UK. If the evidence you provide is inconclusive, then you will be invited to provide further documentary evidence: there will be a list of preferred evidence and the website will also provide alternative acceptable evidence of your residence. The Government has said it will take a flexible approach, but it remains to be seen how it will be implemented in practice.
In addition, a criminal record check is required. This will be carried out by the Home Office at the time of application.
Q: Will I have to prove I have been exercising EU Treaty Rights, in other words rights afforded to citizens of the European Union?
A: The Government has stated that to obtain settled status you only need to have been living in the UK for five years.
It has confirmed that the process will be streamlined, digital and user friendly. It has also confirmed that it will be a lot simpler than the process for permanent residence applications under current EEA regulations. Answers will be given with checks against the Government databases and it is anticipated that the new process will allow for decisions to be provided “very quickly”. The Home Secretary has also said that the Government’s default decision will be to grant settled status, and there would have to be a “very good reason” not to grant it.
Q: What if I have not been in the UK for five years?
A: In this case you would generally get “pre-settled status” instead. The Government has said this will allow EU nationals to stay in the UK for a further five years, after which you are expected to apply to settled status.
Q: When can I apply?
A: The scheme is still subject to parliamentary approval and a phased roll out of the scheme is expected in late 2018.
The Government expects the scheme to be fully open by March 2019. The deadline to apply is 30 June 2021.
Q: How much will it cost?
A: The cost will be £65 per adult and £32.50 for those under 16. Anyone who already has a permanent residence document, or indefinite leave to remain, can apply free of charge. There is also no charge to move from pre-settled to settled status.
Applicants will not be required to pay the Immigration Health Surcharge.
Q: What if I have had periods of absence from the UK during the last five years?
A: If you have been resident in the UK for less than five years, you must not have been absent from the UK for more than six months in any one 12 month period. Up to 12 months, absence is permitted for exceptional reasons such as pregnancy, childbirth, poor health, study or vocation training. Anyone who has worked in the UK for at least three years and who has subsequently left to work in another EU member state, but who has maintained a place of residence in the UK to which they return at least once a week, will be eligible.
If you resided in the UK for five years, you must not have been absent from the UK for five years or more since completing the give year period. For example, if you plan on leaving the UK in 2018 for six years after living here from 2013, and wish to apply for settled status, this is unlikely to be granted.
- If you worked in the UK prior to retirement for at least 12 months and you have resided in the UK for at least the last three years; or
- If you have stopped work due to incapacity having been continuously resident for more than two years, you will also be eligible.
- Those under 21 who continue to reside in the UK will also be eligible, provided their EU parent has been granted Indefinite Leave to Remain (ILR).
Q: What documentation will I receive to prove my new status?
A: You will not receive confirmation as a document – instead you will be able to obtain proof of your status through an online service. We expect the Home Office to update its guidance on the right to work and right to rent checks accordingly.
Q: What will my rights be when I have been granted settled status?
A: Settled status means that you will be able to remain in the UK indefinitely free of immigration control, and will be eligible for public services such as healthcare, education, public funds including access to the NHS and pensions.
Q: What about EU nationals who will arrive in the UK after December 2020?
A: The agreement with the EU provides for “an implementation period” from 30 March 2019 to 31 December 2020. EU nationals who arrive during this time will be expected to apply for “pre-settled status” and then eventually progress to “settled status” if they wish. Those who arrive after this period can expect to have to qualify under new immigration rules, details of which are expected to be announced later this year.
Q: What about my non EU family members?
A: Non-EU family members with whom your relationship existed before 31 December 2020 will be able to make associated applications for pre-settled or settled status.
Q: What if there is no Brexit deal?
A: Even if the UK were to exit the EU with no deal agreed, the fact that the Government has made such clear assertions upon which people are entitled to rely means the Government is expected to adhere to this commitment.
Q: What about non-EU EEA nationals? (i.e. nationals of Iceland, Liechtenstein, Norway and Switzerland)
A: The Government intends the scheme to apply also to nationals of the EEA, but this still needs to be formally agreed. Irish nationals may choose to apply for settled status, but they will not be required to do so, as they have separate right of residence in the UK not related to EU membership.
Q: What should employers be doing now?
A: Employers with a large EU workforce will need to look out for further developments. As an employer, you may wish to publish information about settled status and pre-settled status to your workforce, as well as further updates when they are released. This will help ensure that your employees know what they should do when the time comes for them to apply.
Q: Conclusion – good news?
A: This appears to be reassuring news for EU nationals and employers alike. As always, the devil will be in the detail, and we will provide more updates as they become available.
For any further information please contact Sacha Schoenfeld, head of the immigration team at Fox Williams.