On 7 November 2017 the UK government published a Technical Note about its proposal for “settled status” for EU citizens in the UK. Settled status (currently called Permanent Residence or PR) will grant EU nationals and their families, who have spent five years in the UK, the same rights as British citizens after Brexit. Obtaining settled status will be a condition for lawful residence for EU citizens – it will be needed to prove immigration status to UK authorities, employers, banks, landlords and others.
Qualifying individuals can apply for settled status within a set period of time – probably two years - after exit from the UK in March 2019. If the IT system is set up in time, the UK plans to set up a voluntary process to enable EU citizens to apply for settled status before the end of 2018.
The UK government acknowledges that the current system for processing registration certificates and residence cards under the EEA Regulations is not fit to deal with the three million or more EU citizens that will need to apply for settled status. The Home Office is proposing a completely new digital system and new rules for applicants.
What are the criteria to qualify for settled status?
The criteria will be set out in the Withdrawal Agreement, which will be the document setting out the agreed Brexit terms between the EU and the UK. Apparently the rules will be “simple” and “transparent”. They will mirror the existing conditions under EU law, namely that citizens have a minimum of five years continuous and lawful residence in the UK as a worker, self-employed person, student, self-sufficient person, or a family member of those persons.
Will it be as complicated as the current PR process?
Apparently not. The UK says that it is designing a streamlined, user friendly and digital application process. They propose a more pragmatic approach to evidencing the exercise of rights with more collaboration and information sharing between government departments, for example employment records held by HMRC. That would mean that an application for settled status will require less supporting documentation than for PR. Caseworkers will also be required to give applicants the opportunity to provide supplementary evidence or to resolve any issues where it appears that a simple omission has taken place.
Crucially, for those EU citizens who have spent time during the five year qualifying period as a student or financially self-sufficient person, the current PR requirement to hold comprehensive sickness insurance will be removed. This is welcome as the CSI requirement disqualified many EU citizens from securing PR.
Will I be able to travel during the processing of my application?
Applicants will need to provide a photograph, but will not have to provide biometric data. We expect that there will be a facility to ensure that applicants can continue to travel overseas during the processing period.
What about EU citizens that arrived in the UK before Brexit but don’t have five years’ residence yet?
The guidance says that “applicants who are not yet able to give evidence of five years’ continuous residence necessary to obtain settled status, but who can evidence that they were resident before the specified date, will be given temporary status”. This means there will be a route for applicants to remain in the UK until they have built up the necessary five years residence to apply for settled worker status.
How much will it cost?
The government has stated that the fee for settled status will not exceed the cost of a British passport – currently £72.50 - and is not expected to have significant future increases.
What about EU citizens who already hold PR?
Even those EU citizens who have spent the time and cost in applying for PR before Brexit will have to apply for settled status. Rather than being a fresh application from scratch, the government proposes a simple exchange process, subject to ID verification, submission of a photograph, security checks and confirmation of on-going residence. There will be no need to reprove the five years’ residence and those holding PR already will be charged a reduced fee.
It all sounds too easy. Are there any other risks?
Applications for settled status can only be refused if the applicant:
- was not resident in the UK before the specified date
- does not meet the conditions in the Withdrawal Agreement (e.g. does not fit into one of the qualifying categories), or
- is ineligible on criminality or security grounds.
The government says that it expects “the majority of cases to be granted”. However straightforward the process may be, this means that a proportion of cases will be refused. With such a large pool of applicants even a small percentage of refusals could leave many EU citizens without valid immigration status and facing difficulties proving their status to employers, landlords and banks and government agencies, or possibly having to leave the UK.
There will be an administrative review mechanism for obvious case-working errors. Beyond that EU citizens and family members will then have a statutory right of appeal, with a right to remain in the UK pending conclusion of that process, unless a deportation decision is made.
If an EU citizen is eligible to apply now for PR should they do so?
Whether or not an EU citizen should apply for PR now will depend on their and their family’s personal circumstances in each case. Generally, if applicants are eligible for PR and have the necessary supporting documents to prove it we recommend applying for PR now. The reasons include:
- These settled status proposals are just that – they have not been finally agreed with the EU27 or taken effect yet and they may not do so in the future.
- For any EU citizen wanting future British Citizenship, it is likely to be easier to apply for that before Brexit under an established (even if slightly more complicated) system.
- Extended family rights are likely to be severely restricted following Brexit.
- There are real doubts about whether the government can implement a new and reliable IT system in time and commit sufficient resources to be able to process such a huge volume of applicants, without there being inevitable delays or errors in processing.
- Although anyone with PR will need to convert PR to settled status, it should be a fairly simple process and the government fee for both applicants will remain relatively low (the PR fee is currently £65)