The UK Government has recently published a Statement of Intent outlining details of the new EU Settlement Scheme (the Scheme). The purpose of the Scheme is to provide EU migrants resident in the UK at the end of the transition period on 31 December 2020 with a route to stay in the UK post-Brexit.

The Scheme will be rolled out from late 2018, with the intention of being fully operational by 30 March 2019, and will accept applications until 30 June 2021. From 28 August 2018, the Home Office will start a managed live trial which will involve EU citizens working at 12 NHS Trusts, and students and staff from three Liverpool universities, being invited to make real applications for Settled Status through the new digital process.

Who can apply under the Scheme?

The Scheme will apply to those EU nationals and their non-EU family members (spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) who are resident in the UK by 31 December 2020. It is important to note that the Scheme applies to EU nationals only and not to nationals from Iceland, Liechtenstein, Norway and Switzerland. The UK Government has stated that separate deals will be negotiated with these jurisdictions.

Non-EU family members living overseas will still be able to join an EU citizen resident in the UK under the Scheme, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK.

What immigration status will they be given?

There will be two new UK immigration statuses available under the Scheme based on time spent in the UK at the time of application:

  1. Settled Status: for applicants who have spent at least five continuous years in the UK. They will be able to apply for indefinite leave to remain which will enable them to stay in the UK permanently with no immigration restrictions on their activities in the UK.
  2. Pre-Settled Status: for applicants who have spent less than five continuous years in the UK. They will be granted limited leave to remain, in the form of a five year residence permit, which will effectively enable them to continue to live in the UK as if they were still exercising EU free movement rights. Once they have completed five years in the UK, they should be eligible to apply for Settled Status.

Successful EU applicants will not be given a physical document, but an electronic residence permit. Successful non-EU applicants will be issued with Biometric Residence Permits (BRPs) as they are now.

Eligibility requirements for Settled Status

Applicants need only demonstrate continuous residence in the UK and be free from serious or persistent criminal behaviour. There is no requirement for them to enrol their biometrics or demonstrate an ability to communicate in English.

Continuous residence means that they must not have been absent from the UK for more than six months in any 12 month period. An absence of up to 12 months is permitted for exceptional reasons such as pregnancy, childbirth, ill health, study or vocational training. Longer absences are permitted where someone is required to complete national military service overseas.

The Home Office is keen to emphasise that it is not necessary to be physically present in the UK on 31 December 2020 where this is due to a temporary absence, for example a holiday.

In a generous concession, continuous residence will not be broken where an applicant is absent from the UK for up to five years.

Although the majority will be eligible for Settled Status after five years, some people will be eligible for Settled Status at an earlier stage in the following circumstances:

  1. They have been in the UK for three years, have retired and worked in the UK for at least 12 months before retiring.
  2. They have been in the UK for two years, but have stopped working due to incapacity.
  3. They have been resident in the UK for any length of time as the family member of an EU national, that EU national was resident for at least two years and has subsequently died.
  4. They are under 21 and have been resident in the UK for any length of time and one EU parent has been granted Settled Status.
  5. There were continuously resident in the UK for at least three years as a worker or self-employed person, immediately before becoming a worker or self-employed person in another EU country, while retaining a place of residence in the UK to which they return, as a rule, at least once a week.

Importantly, most applicants will not need to demonstrate that they were exercising an EU Treaty Right (working, studying, self-sufficient, job-seeking), nor will they need to have held Comprehensive Sickness Insurance.

A principle of evidential flexibility will apply, so the Home Office will work with applicants to correct minor defects or request more information.

Application process

The application process will be online without the need to surrender documents where possible.

The Home Office has developed a mobile phone app where applicants can answer questions about their residence in the UK and identity. Applicants will upload copies of their identity documents and the Home Office will check records held by HMRC and DWP. They will also undertake a criminal record check.

For most applicants, particularly those who have been working, this will be enough to demonstrate that they qualify for Settled Status, which will be granted electronically.

Where HMRC or DWP records do not show five years’ continuous residence, applicants will be given the opportunity to provide supplementary evidence, for example, utility bills or property documents.

If five years (or less in the circumstances laid out above) continuous residence is demonstrated, Settled Status will be granted; otherwise, Pre-Settled Status will be granted for five years.

An online form will also be available and the Home Office is considering making the mobile app available in certain centres for those who need assistance or do not have a mobile phone capable of using the app.

There will be a fee of £65 for adults and £32.50 for children under 16.

Naturalisation

Applications for British citizenship can be made 12 months after the date on which applicants were granted Settled Status under the Scheme – the date that an applicant was deemed to receive Permanent Residence in the UK will not be backdated as it is under the current Document Certifying Permanent Residence (DCPR) system.

This means that those applicants wishing to apply for Naturalisation at the earliest opportunity may still wish to apply for a DCPR rather that Settled Status, even after the Scheme goes live.

Other issues

For non-EU family members, the relationship must have existed on 31 December 2020 in order for those family members to apply under the Scheme. Therefore applications involving relationships formed and marriages entered into after 1 January 2021 will be considered under a new, as yet undisclosed, immigration system.

Irish citizens are welcome to apply under the Scheme but are not required to.

Citizens’ rights are to be monitored in the UK by a new Independent Monitoring Authority.

Applicants will be able to apply for Administrative Review where their application has been refused. An appeal right is being considered but will only be available for applications submitted after 30 March 2019 as primary legislation is required.

Where an application is refused, the EU migrant will still be able to stay in the UK as they will retain EU free movement rights until 31 December 2020.

Non-EU nationals will need to evidence their relationship to the EU national and document the EU national’s residence in the UK. They must also enrol biometrics and, if successful, will be issued with a BRP.

It is important to note that the Scheme will close to new applicants on 30 June 2021. Those who have been granted with Pre-Settled Status will be able to apply for Settled Status if they complete the five year qualifying period after this date, provided they satisfy the continuous residence requirements. However, the Statement of Intent is silent on what will happen to those EU nationals who obtain Pre-Settled Status but who do not satisfy the continuous residence requirements for Settled Status by the time their residence permit expires.