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Celebrity chef Claude Bosi refused permanent residence after Brexit – here’s what went wrong
Credit: Miyagawa via Wikimedia Commons

Celebrity chef Claude Bosi refused permanent residence after Brexit – here’s what went wrong

French chef Claude Bosi, holder of two Michelin stars for his Chelsea restaurant, published his Home Office refusal letter on Instagram today:

The refusal letter reads:

You applied on 16 October 2019 for a document certifying permanent residence to confirm you are a European Economic Area (EEA) or Swiss national who has exercised Treaty rights in the UK for a continuous period of five years. I am writing to let you know that your application in the UK has been refused.

The reasons for refusal are unpublished but there is a lot that can be drawn out from this short passage. Long story short: this letter does not mean that Mr Bosi is being kicked out of the UK.

Mr Bosi applied, perhaps in error, for “a document certifying permanent residence” based on having exercised “treaty rights” in the UK for at least five years. A document certifying permanent residence is not the same as “settled status” issued under the government’s EU Settlement Scheme (no matter what the Daily Mail thinks).

While the Home Office still accepts applications for permanent residence documents, it is an older type of settlement process designed for the UK being a member of the European Union. Nowadays, EU citizens are generally encouraged to apply to the Settlement Scheme instead, which is designed for Brexit. (It also covers citizens of Switzerland, Iceland, Norway, and Liechtenstein, but for convenience we’ll just talk about “EU citizens” in this article.)

A “document certifying permanent residence”

A document certifying permanent residence is a legal term referring specifically to a document issued under regulation 19(1) of the Immigration (European Economic Area) Regulations 2016. Such a document allows EU citizens to demonstrate that they have the right of permanent residence in the UK — a status that will lapse once the Brexit transition phase that begins on 31 January comes to an end.

To qualify for a document certifying permanent residence, the applicant must prove to the Home Office’s relatively high standard of proof that they have exercised treaty rights in the UK for a continuous period of five years. The phrase “exercising treaty rights” essentially means one or a combination of the following: working; job-seeking; studying while holding comprehensive sickness insurance or a valid EHIC card; or living self-sufficiently in the UK while holding comprehensive sickness insurance or a valid EHIC card.

In this application process, the Home Office places the burden of proof squarely on the applicant’s shoulders. Officials will not (unlike under the EU Settlement Scheme) cross-check records with HMRC or other government bodies. An applicant for a document certifying permanent residence basically needs to put together a package of evidence that will satisfy the most pedantic of decision-makers that they, without a shadow of a doubt, fulfil the treaty rights requirements.

This type of application is onerous — the paper application form, notoriously, is 85 pages long. It also requires a lot of accompanying documentary evidence. If, for example. Mr Bosi failed to provide either a P60 certificate (if he was employed) or an HMRC self-assessment (if he was self-employed) for a particular year, then that would kill his application stone dead in the eyes of the Home Office.

“Settled status” under the EU Settlement Scheme

Settled status granted under the EU Settlement Scheme is a dressed up version of “indefinite leave to remain”, often referred to as “ILR”, “settlement” or even (and very confusingly) just “permanent residence”. Indefinite leave to remain is an immigration status granted to migrants under powers conferred by the Immigration Act 1971 — so UK law rather than EU law.

Indefinite leave to remain is a much stronger status than a document certifying permanent residence issued under the EEA Regulations because it is issued under primary legislation which is not imminently going to be repealed. The EU Settlement Scheme is the government’s way of transitioning European residents onto the UK’s domestic system of immigration control so that when we withdraw from the European Union treaties — that is to say, when we Brexit — their presence in the UK will continue to be lawful. Even those who have old permanent residence documents must trade them in for settled status using the Settlement Scheme.

Contrasted with the application for a document certifying permanent residence described above, an application for settled status is, in theory at least, much easier and has much softer requirements.

The most important difference is that settled status only requires five continuous years of residence in the UK. It doesn’t matter what the applicant was doing in those five years. They could have sat with their feet up on the sofa for five years straight and still qualify if either Home Office databases detect their presence here, or they can provide evidence of residence such as council tax bills.

Another difference is that the Home Office will, theoretically anyway, reach out to applicants to help them if their applications appear to fall short. Not so with applications for documents certifying permanent residence — as Mr Bosi seems be discovering. It’s also free, which permanent residence applications are not.

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For these reasons, the Settlement Scheme is usually seen as the way to go for most EU citizens. But the Home Office still accepts both types of application, and a document certifying permanent residence can still be useful for people who want to proceed to British citizenship as soon as possible.

Applications for documents certifying permanent residence are still live. All it takes is googling the wrong keywords (“permanent residence” instead of “settled status”) and you end up on the wrong part of the government website.

Being refused a document certifying permanent residence is no barrier to Mr Bosi re-applying, this time for settled status, and being granted the right to live and work in the UK after Brexit.

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John Vassiliou is a partner at McGill & Co, a Scottish law firm specialising in immigration and nationality.

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