It now appears that the UK will remain a member state of the EU and therefore benefit from freedom of movement until 31 October 2019. The EU Settled Status Scheme opened to all applicants on 30 March 2019.
This means that at present there are two systems operating in parallel for EU nationals and any eligible non-EEA national family members to obtain evidence of their status in the UK:
- Applications for residence documents under the Immigration (European Economic Area) Regulations 2016 which aim to implement the EU Free Movement Directive;
- Applications for settled status under Appendix EU to the UK’s Immigration Rules.
Why should I apply under the EU Settled Status Scheme?
This Settled Status scheme is more generous than the EU regulations in a number of ways as it just requires five years continuous lawful residence in the UK. This can generally be ascertained by checks with the HMRC. Criminal background checks will also be conducted.
There is therefore no need to have been a ‘qualified person’ during this five year period. Therefore if your situation is complex, you have gaps in your exercise of Treaty rights, or will find it difficult to gather sufficient documentary evidence of your activities in the UK, it may be easier to apply for settled status.
For people who have spent some time in the UK as a student or a self-sufficient person, there is no need to have held Comprehensive Sickness Insurance.
If you acquired the right of permanent residence in the past and obtained a document to evidence this, but lost this right through absences from the UK for more than two years, you may still be eligible for settled status.
This is because under Appendix EU, a person is eligible for Indefinite Leave to Remain if they are an EEA national, or family member of a relevant EEA national if they have a ‘documented right of permanent residence’ and no ‘supervening event’ has occurred. The definition of ‘supervening event’ includes absence from the UK for more than five consecutive years at any point since acquiring the right of permanent residence. It is therefore more generous than the EEA Regulations.
Why should I apply for a document under the EEA Regulations?
EU nationals who have lived in the UK in accordance with the EU Regulations for a continuous period of five years may have acquired the right of permanent residence and can therefore apply for a document certifying permanent residence (DCPR) as evidence of this. Non-EEA family members may be eligible for a permanent residence card. There is no legal requirement to apply for these documents, but they are helpful to confirm the right of permanent residence.
If you have already lived in the UK in accordance with the EEA regulations for a period of more than five years, and want to apply to naturalise as a British Citizen as soon as possible, it is sensible to make an application under the EEA Regulations.
This is because in order to naturalise as a British citizen, you will need to be free from immigration time restrictions for 12 months. If an application for a document certifying permanent residence is granted, the Home Office will confirm the date on which you were deemed to acquire the right of permanent residence. If this is more than 12 months ago, you may be eligible to immediately apply to naturalise.
In contrast, if you are granted settled status, you will have to wait 12 months from the date you are granted settled status before naturalising, no matter how long you have lived in the UK.
Can I make both applications?
Unless you have already become a British citizen before the deadline to apply under the EU Settlement Scheme, you will still need to make a further application, either before 30 June 2021 (if we leave with a deal) or 30 December 2020 (if we do not).
There is nothing to prevent someone from making both applications, and this may be the best way to secure your rights. If you are already in possession of a document certifying permanent residence or permanent residence card, applying for settled status will be very straightforward. Once you have settled status, you can spend up to 5 years outside the UK without losing this status.
You should wait for a decision on an application under the EEA Regulations before making an application under the EU Settlement Scheme, as the guidance states ‘In most cases, your outstanding immigration application will not be considered if you apply for the EU Settlement Scheme. You’ll get a refund for your outstanding application’.
Applications for permanent residence documents cost £65 and should be processed within six months, while straightforward applications to the EU Settlement Scheme take 5 to 9 days to process and are free of charge. You can keep your passport and original documents in your possession for both types of application.
How do I challenge the decision?
There is a right of appeal against a decision refusing to issue a permanent residence document to an immigration judge of the First-tier Tribunal (Immigration and Asylum Chamber). The appeal must be made within 14 days of the decision and the fee is £140 for an oral hearing.
At present, a decision under the EU Settlement Scheme does not have a right of appeal, and can be challenged only by Administrative Review pursuant to Appendix AR (EU). An application must be made within 28 days of the decision and accompanied by a fee of £80. The decision will be reviewed by a different Home Office official. If it is overturned, the fee will be refunded.
The grounds to challenge a decision by Administrative Review are limited as compared to a full appeal right which means that individuals have less protection against incorrect decisions. If a person is still not satisfied with the result after the Administrative Review, they can pursue Judicial review proceedings. A fresh application with further evidence can be made at any stage.
If we leave the EU with a deal this is likely to include a full right of appeal under the EU Settlement Scheme, as this has been proposed by the government at part of its withdrawal agreement.