In a document entitled “Statement of Intent” the Home Office has published further details about the scheme it intends to put in place for European nationals and their family members (living in the UK) in the lead up to Brexit, including draft Immigration Rules that set out in detail what the scheme will look like (the Draft Rules).

It means we finally have some clarity on the rules the UK intends to have in place for all EU nationals and their family members living in the UK who wish to continue to do so after the UK leaves the EU. As the UK and the EU continue to negotiate the terms of the Withdrawal Agreement, it is possible that the terms of the scheme may change and the Immigration Rules that are finally implemented will differ. However, this document is the closest we have got to knowing what provisions are likely to be in place, presuming the UK actually leaves the EU and a deal is reached with the EU governing the exit arrangements.

The area in which we still do not have clarity is the rules that will apply to EU nationals and their family members wishing to come to the UK after Brexit. This issue has been excluded entirely from the Government’s White Paper, published on 12 July, setting out the Government’s proposals for what it hopes will be the foundation of the UK’s future relationship with the EU.

Settlement Scheme

Whilst the official date for leaving the EU is 29 March 2019, there will be no change to the current rights of EU nationals and their family members until the end of the implementation period on 31 December 2020. The Government nonetheless intends to launch the application process for settled and pre-settled status (see below for an explanation of these terms) later this year. The Draft Rules require all EU nationals and their family members to apply for settled status or pre-settled status before 30 June 2021 . Those who miss this deadline will be given a further period to apply, providing they have good reason for the delay.

Settled Status: EU nationals and their family members who have been continuously and lawfully resident in the UK for five years by 29 March 2019 will be entitled to apply for a settled status document, which will allow them to live in the UK indefinitely.

Pre-Settled Status: those who have not yet lived in the UK for five years by 29 March 2019 must apply for “pre-settled status” and will be able to apply for a settled status document once they have accrued five years’ continuous and lawful residence in the UK.

Whilst the Draft Rules require ‘lawful’ residence, evidence of lawful residence showing that the applicant has been exercising treaty rights is not required. Instead, the application process involves applicants verifying their identity and nationality by providing a passport, national ID card or Biometric Residence Permit (for family members), uploading a selfie, demonstrating that they have been residing in the UK and declaring any criminal convictions. The Home office will carry out its own checks to verify residence and criminal convictions.

The main eligibility requirement will be proof of continuous residence. Current requirements, to have been exercising treaty rights or to have held comprehensive sickness insurance, will be removed from the settled status scheme. Continuous residence will normally only be broken if an applicant has been absent for more than six months in any 12 month period. Accordingly, this is a much simpler test.

The Home Office is planning to use technology to make the application process as streamlined and easy as possible and has stated it will be looking to grant, rather than refuse, applications. The majority of applications will be made via an app, which is intended to be accessible through smartphones, tablets, laptops and computers; although a paper form will also be available.The fee for applications will be £65 for an adult and £32.50 for a child (16 or under). If an applicant has been granted pre-settled status, they will not normally be required to pay a further fee when applying for settled status. Those applying to swap their permanent residence or indefinite leave to remain documents for a settled status document will not be charged.

For the period during which the UK remains in the EU, EU nationals and their family members can still apply for permanent residence if they meet current requirements. The Home Office confirms when permanent residence was acquired (normally on whatever date the applicant can show that they were living in the UK for 5 years exercising treaty rights) which will enable applicants to apply to naturalise as British one year after the date of acquisition of permanent residence. It is not clear if the new rules will backdate settled status in the same way. Accordingly, applicants who choose to wait and apply under the settlement scheme may delay their eligibility to apply to naturalise.