In a time when Immigration Rules are becoming ever more complex and the battles of Brexit rage on, the apparent simplicity of the government’s approach to EEA nationals and their family members, set out in the ‘EU Settlement Scheme: Statement of Intent’, at first glance, seems a welcome relief.
Published on the 21 June 2018 the 60 page document outlines the draft requirements and procedures proposed for EU nationals and their family members living in the UK following the UK’s proposed exit from the European Union. The draft Immigration Rules, which will be contained in an Appendix EU, confirm details of the new EU Settlement Scheme. EU nationals and their family members who have lived in the UK continuously for five years will be eligible for settled status (indefinite leave). Those who have not yet clocked up five years continuous residence will need to apply for pre-settled status (limited leave to remain).
The scheme will be open to all EU nationals, and their family members, who are resident in the UK on or before the 31 December 2020. It also covers ‘close family members’ living outside the UK on the 31 December 2020, so long as their relationship with the EU national inside the UK existed on the 31 December 2020. Close family members include a spouse, civil partner, a durable partner, a dependent child or grandchild and dependent parent or grandparent. The scheme will not, however, apply to the non-EU European Economic Area States (Iceland, Lichtenstein and Norway) and Switzerland, with whom separate deals are still in progress.
The scheme confirms that there will be no changes to the current rights of EU citizens and their family members living in the UK until the end of the implementation period, i.e. until 31 December 2020. EU citizens living in the UK, and their family members, do not need to apply immediately. They must, however, make an application no later than the 30 June 2021 to make an application if they wish to remain in the UK (unless they have naturalised as British). It is proposed that the application process will open for some applicants later this year and be fully operational by March 2019.
So what requirements will EEA nationals living in the UK need to meet? The EU Settlement Scheme: Statement of Intent requires applicants to meet three core criteria:
Identity – applicants will need to verify their identity. For EEA nationals this will largely be done through uploading a copy of their valid passport or national identity card.
Eligibility – applicants will need to show that they have resided in the UK continuously for 5 years. Those who have not resided in the UK for 5 years will be entitled to pre-settled status. Unlike the current positon, applicants will only need to show that they have resided in the UK continuously, and will not, generally, need to show that they have been exercising any particular rights, such as a worker or as a student. An automatic check will be made with HMRC or the Department of Work and Pensions, and where government data is lacking, applicants will be given the opportunity to upload additional evidence of residence.
Suitability – a check will be made on the criminality and security databases within the UK and overseas. Those considered serious or persistent criminals or those who pose a security threat will be refused. There will be a difference in the way crimes committed before 31 December 2020 and after are looked at. Those committed after that date will be treated more harshly, in line with current UK domestic deportation law.
Non EU family members will need to demonstrate their relationship to the sponsoring EU national and the EU national’s continued residence in the UK. The initial guidance suggests they may prefer to wait to apply until the EU national has been granted their new status to simplify the application process.
Some generosities of the scheme include allowing for an accelerated route to settled status for certain groups, which not only mirror the current Regulations but which also allow for children under 21 to be granted leave in line with their qualifying parents. In addition, once a person has been granted settled status they will be able to leave the UK for up to five years without losing their indefinite leave. This is much more generous than the current regime which only permits absences of two years. Further, the parent of an EU national will be presumed to be ‘dependent’ on the relevant EU national, avoiding the need to document the dependence, which for some will be quite a respite. It is a shame the same presumption of dependence could not have been extended to children of EU nationals aged 21 or over who will still need to provide evidence dependence.
Notwithstanding these generosities and the generally simplified approach there are areas which remain of concern and areas which will be tighter going forward.
One issue, which will ring alarm bells for those who struggle with the inadequacies of the existing online application forms for immigration application is the digitalisation of the application process (applications are to be made online, via a computer, smart phone, or tablet). The scheme suggests there will be a limited number of cases when paper applications will be permitted, but has yet to clarify when this will be the case.
The need to have access to computers and be computer literate, along with being able to document residence in the UK is a cause for concern for some. Charities representing the Roma community in the UK, for instance, fear that they might be disproportionality affected. Concerns have also been raised for the elderly, some of whom may not be IT literate or be easily able to document their residence in the UK. While ‘an assisted digital service’ has been touted, no details have as yet been provided. From personal experience of contacting the UKVI customer service helpline the offer is not entirely comforting.
Another area which may cause problems for applicants is working out whether they have resided in the UK continuously. Absences accrued of up to 6 months in ‘any’ 12 month period will not break continuity. The suggestion is that, contrary to the current position, this will be assessed on a ‘rolling 12 month period’ rather than consecutive 12 month periods making the planning for and calculation a of absences ever more complicated.
The imposition of a fee (£65 for persons aged 16 years or over and £32.50 for those under 16) has also received criticism, including from the European Parliament Brexit Co-Ordinator, on behalf of its Brexit Steering Group, has written to the Home Secretary submitting that the scheme should be free. When you consider the potential cost for large families, along with the cost of obtaining valid national passports or ID cards, if not already held, the expense can mount up significantly for what will now be a mandatory scheme.
For EU nationals living in the UK what does it mean now? If you are considering applying for British citizenship and/or have children born in the UK are who are likely to be born before the 30 March 2019, it is worth making an application for a document certifying permanent residence as soon as possible. This will be the fastest way for you to obtain citizenship. Otherwise, make sure to apply under the scheme no later than the 30 June 2021.
Like Brexit itself, the scheme is still at a draft stage and therefore changes are yet possible. What will happen if there is no deal on Brexit itself is another story.