- When should I apply?
- How do I apply?
- What will I need to prove?
- How much does it cost?
- How long until I get a decision?
- What if my application is refused?
- I have started an application for a document certifying permanent residence. Should I still apply or should I wait for the new system to come into place?
On 14 November 2018, the British government reached an agreement with the European Union on the terms of the UK’s withdrawal from the EU. It includes arrangements about the legal status of EU citizens following Brexit, which had been settled in an earlier draft of the treaty on 19 March, and covers EU citizens who already live in the UK or arrive here before 31 December 2020.
- EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for “settled status” enabling them to stay indefinitely.
- EU citizens and their family members who arrive by 31 December 2020, but will not yet have been continuously resident here for five years, will be eligible for “pre-settled status”, enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status.
- EU citizens and their family members with settled status or pre-settled status will have the same access as they currently do to healthcare, pensions and other benefits in the UK.
- Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will still be able to join an EU citizen resident here after the end of the implementation period, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. Future children are also protected.
Others who currently have rights under EU law will be protected too, including family members of British citizens who enter the UK under the Surinder Singh immigration route before the end of 2020 and those with “retained rights of residence”.
A vital feature of this agreement for the 3.5 million or so EU citizens living in Britain is that they are not protected by it unless they make an application to the Home Office, under what the department has branded the EU Settlement Scheme. Contrary to many press reports, there is nothing “automatic” about it. Failing to apply will mean that they end up with no legal right to live and work in this country. The Windrush generation can testify that being undocumented (or thought to be undocumented) in “compliant environment” Britain is no fun at all.
The EU Settlement Scheme is underpinned by a recent set of administrative changes, published on 20 July 2018, adding an “Appendix EU” to the Immigration Rules. Appendix EU is where the detailed rules on the Settlement Scheme are found. It is not easy reading for non-lawyers, though, so this post tries to explain what the rules are and how the scheme works.
When should I apply?
Settlement Scheme is still being tested
The application system will be fully open to all by 30 March 2019. In the meantime, however, it has been tested by some eligible applicants. The first phase of the implementation of the scheme, “Private Beta 1”, ran from 28 August to 17 October 2018. It was open, on a voluntary basis, to EU citizens (and their family members) working at 12 NHS Trusts, and students and staff from three Liverpool universities. The results of this first pilot can be found in this report.
- 1,053 applications were made; all were successful
- the average time taken on all decisions was just under nine calendar days, with the fastest application decision being made within three days
- over 85% of applicants took less than half an hour to complete the application
That said, the Home Office recognises that “this test cohort is not reflective of all individuals who will be eligible to apply to the EU Settlement Scheme, since the PB1 cohort was selected in part to support the testing of specific aspects of the system, for example the automated checks of HMRC data.”
The second phase of testing, Private Beta 2, started on 1 November, and will run until 21 December 2018. Again, it is only open to some applicants, as detailed here.
Once fully open, there is a hard deadline
Every EU national and their family will need to make an application before the deadline of 30 June 2021.
Previously, it was thought that people who arrived during the Brexit “transition” or “implementation” period between 29 March 2019 and 31 December 2020 would need to register after three months. It now seems that only non-EU family members joining EU citizens after 31 December 2020 will need to meet a three-month deadline. EU citizens themselves will still have until 30 June 2021 to apply for status, even if arriving during the transition:
1.19. There will be plenty of time – until 30 June 2021, six months after the implementation period ends on 31 December 2020 – for all those resident here by 31 December 2020 to apply for status under the EU Settlement Scheme, and they will remain protected by the Withdrawal Agreement pending the outcome of such an application made by 30 June 2021. Close family members joining an EU citizen here after 31 December 2020 will have three months from their arrival in which to make an application for status under the scheme
People who may want to apply earlier rather than later include non-EU family members of EU nationals whose current documents will expire while the settled status process is open. They may want to get a settled status document, rather than renewing their existing documents, to use for things like proving to employers, landlords and banks their right to live and work in the UK. Otherwise, family members will end up getting an old-style EU residence document and then having to switch onto settled status — they might as well go straight onto settled status once it becomes available.
On the other hand, those who have not yet reached the five years but will by 30 June 2021 may want to wait until the five-year anniversary of their residence in the UK to apply. If not, they will be granted pre-settled status first, and will then need to make a second application for settled status once they have reached the five-year mark.
How do I apply?
Generally, online. There will be the option of a paper application form, but we still don’t know who will be allowed to use it. The government said in June that “consideration is… being given to the particular circumstances in which the provision of a paper application form may be appropriate”. The government will also provide an assisted digital service for those who need support to make an online application. This might take the form of a number to call for help filling in the online form, or in-person help at local libraries.
Applicants will need to provide proof of identity and nationality. This will usually need to be a passport or national ID card, although the Home Office may accept alternative evidence where an applicant is unable to produce that document “due to circumstances beyond their control or to compelling practical or compassionate reasons”). Occasionally applicants will need proof of residence as well (see below for more details on this).
Finally, applicants will need to enrol their “facial image” (a photo of themselves). EU citizens, and non-EU citizens who previously had a Biometric Residence Card issued under the EEA Regulations, will be able to do so by uploading a passport-style photograph digitally (but this should not be the same photo as that which appears in their passports). All other applicants will need to go to an application centre to enrol their fingerprints and have their photograph taken. At the moment, those procedures would be done at a Post Office, but the use of the word “application centre” seems to indicate it could be a different place, for example UK Visa and Citizenship Application Service (UKVCAS) centres.
The ID and photo can be uploaded using an app. But the app seems to still not be working on Apple devices, such that Apple users will need to borrow Android devices, or send their passport by post, slowing down the application process.
What will I need to prove?
I am an EU national
EU nationals will need to prove:
1. Identity and nationality
Applicants will be able to provide evidence of their identity and nationality by uploading a passport or valid national identity card digitally via a smartphone app. This will only work if the passport or card is a biometric document with a chip (indicated by a rectangular gold symbol that looks like a camera).
Those who do not have a biometric document may send the documents by post instead. The identity document will be returned to the applicant “as soon as [the Home Office] can”, and presumably even before a decision has been made.
2. Your residence in the UK
Those applying for settled status will need to show five years continuous residence in the UK. Those applying for pre-settled status will need to show current residence in the UK.
Under Appendix EU, continuous residence simply means having lived, or living, in the UK. The definition of “qualifying period” at Annex 1 of Appendix EU makes no reference to “exercising Treaty Rights”. This means that EU nationals will not need to show that they have been working, studying or held Comprehensive Health Insurance (a big issue for many people refused permanent residence documents in the past).
In terms of evidence, it seems that the default position will be for the Home Office to carry out automated checks of data held by Her Majesty Revenue and Customs (HMRC) and the Department for Work and Pension (DWP). Those checks will show evidence of employment and receipt of benefits.
If the checks indicate that the applicant has been continuously resident in the UK for a period of five years, they will be granted settled status.
Of course, not everyone will have data with HMRC or DWP (for example, those who have never worked or received benefits). In those cases, the applicant will then be able to upload documentary evidence of their continuous residence, still digitally. There is a useful draft list of documents which will count as evidence of residence at Annex A of the caseworker guidance. The guidance is for those applying under the Private Beta 2 trial, but it is anticipated a very similar list will be published when the scheme is open to all. It confirms that
This Annex provides non-exhaustive lists of the type of documentary evidence which the applicant will be able to provide. The guidance below is not prescriptive or definitive. Some applicants may lack documentary evidence in their own name for various reasons; you must work flexibly with applicants to help them evidence their continuous residence in the UK by the best means available to them.
I am the family member of an EU national
When lawyers talk about “family members” in this context, we mean non-EU citizens whose right to be in the UK depends on their family relationship with an EU citizen. If you are French and married to an Italian, you can both apply as I’ve described above. Whereas if you are Nigerian and married to an Italian, you can also apply under the Settlement Scheme, but the process will be slightly different.
You can find a detailed list of which family members are eligible for the scheme at Annex 1 of Appendix EU.
Family members of EU nationals may decide to apply for their new status at the same time as their EU citizen husband or mother or whoever it might be. The Home Office website encourages this, stating “You’ll probably get a decision more quickly if you apply at the same time as or after your family member.” Family members will need to prove, through the same documents as above, the EU national’s identity and residence in the UK, although “evidence of the EU citizen having been granted status under the scheme will be sufficient evidence of the person’s identity, nationality and continuous residence”.
In addition, they will need to submit evidence of
- Their own identity
- Their own residence in the UK
- Their relationship with the EU citizen
What if I already have permanent residence or ILR?
Some EU citizens and their families may have what is called “permanent residence” — a technical legal term in this context — under EU law as it exists today and have a document to prove it. Similarly, EU citizens who have lived in the UK since before the EU Regulations came into force in April 2006 may have a document confirming indefinite leave to remain in the UK.
Those who have previously been issued a permanent residence document or have indefinite leave to remain in the UK will be able to exchange it for settled status free of charge, “subject only to criminality and security checks” (see below).
The Home Office will also need to confirm that their permanent residence status has not lapsed through absence of more than five consecutive years; or indefinite leave to remain has not lapsed through absence of more than two consecutive years. The applicant will simply need to “self-declare” that they have not been absent for that period of time. If the Home Office is satisfied “on the balance of probabilities”, that the applicant meets this requirement, they will be eligible for settled status.
What about criminal records?
All applicants will be subject to criminality and security checks. Applicants will, in their applications, self-declare their criminal convictions (without having to submit evidence). In addition, though, the Home Office will carry out its own checks through the Police National Computer (PNC) and the Warnings Index (WI). The immigration minister told Parliament on 21 June that self-declaration is for anyone over 18 and Home Office checks for everyone over the age of ten.
Appendix EU provides more details about grounds for refusal on the basis of suitability.
Rule EU15 sets out mandatory grounds of refusal:
- under EU15(a), an applicant must be refused if, at the date of decision, they are the subject of an extant deportation order or of a decision to make a deportation order
- under EU15(b), an applicant must be refused if, at the date of decision, they are the subject of an extant exclusion order or exclusion decision
- under EU15(c), an applicant must be refused if, at the date of decision, they are the subject of a removal decision under the EEA Regulations on the grounds of their non-exercise or misuse of rights under Directive 2004/38/EC (this means that the applicant is subject to a decision, on those grounds, to remove them from the UK under regulation 23 or regulation 32 of the EEA Regulations, unless this decision has been set aside or no longer has effect in respect of the person)
In addition, under Rule EU16, caseworkers may (i.e. they do not have to, unlike Rule EU15) refuse an application where they are satisfied at the date of decision that:
- In relation to the application and whether or not to the applicant’s knowledge, false or misleading information, representations or documents have been submitted (including false or misleading information submitted to any person to obtain a document used in support of the application); and
- The information, representation or documentation is material to the decision whether or not to grant the applicant leave under this Appendix; and
- The decision to refuse the application on this basis is proportionate.
These suitability requirements have sparked controversy, on the ground that they provide much less assurances that the application process will be easy to pass than the ones given by the government in the past. The charity JCWI, which has launched a legal challenge against these suitability requirements, explains its concerns in this briefing. Watch this space for any developments on this challenge.
What if I am Irish?
Irish citizens will not be required to apply under the scheme (but “they may do so if they wish”). The intention is that nothing changes for them, in immigration terms, because of Brexit. Their family members who are not Irish or British will need to obtain status under the scheme, unless they have an independent right to live here under UK immigration law. They will be able to obtain settled status even if the Irish citizen does not apply for it.
How much does it cost?
The application will cost:
- £32.50 for children under the age of 16
- £0 for
- those who already have valid indefinite leave to remain (again a technical legal term), and have not been absent for two consecutive years since
- those who already have a document certifying permanent residence, and have not been absent for more than five consecutive years or lost their right because a deportation order was made against them
- those who have been granted pre-settled status and are applying for settled status after April 2019
- children in care
- £65 for all other applicants
How long until I get a decision?
Back in December 2017, immigration minister Brandon Lewis said that applicants will have a decision on their application “within a couple of weeks”.
The report on Private Beta 1, mentioned above, confirmed that the average time taken on all decisions was just under nine calendar days, but that processing times should be shortened in the future:
In PB1, caseworkers are required to manually upload scans of ID documents and route cases to different teams depending on the casework action required. In future phases the majority of ID documents will be captured automatically, and the routing of cases will also be automated. Alongside 100% quality assurance checks (which will not apply to all cases in future) this is estimated to have slowed down the decisionmaking process in PB1 compared to future phases by approximately 2-3 days. Overall processing times are also affected by the time taken for caseworkers to receive further evidence where necessary, such as supplementary evidence of residence.
Expected processing times should be published online starting from later in November.
Successful EU nationals will be granted evidence of their status “in digital form”. No physical documents will be issued. Non-EU nationals will, in addition, be issued with Biometric Residence Documents, where they do not already hold one issued under the EEA Regulations.
What if my application is refused?
The first point to note is that, if an application is incomplete and a caseworker thinks that it can be easily rectified, they should contact applicants and give them a reasonable opportunity to submit supplementary evidence.
That said, if the application is refused, the remedy will depend on when the application was made. Those who apply before the coming into force of the Brexit withdrawal agreement on 30 March 2019 will have a right to an administrative review, unless the refusal is made on “suitability grounds”, in which case it seems the only redress will be judicial review. Those applying for administrative reviews are, to put it simply, asking Home Office caseworkers to double check the decision. The rules relating to these administrative reviews can be found in Appendix AR (EU) of the Immigration Rules.
Those who apply after 30 March 2019 will instead have a statutory right of appeal. That is, they will be allowed to appear in front of an independent judge who will decide whether they should have been granted status. Article 18(1)(r) of the draft Brexit withdrawal agreement reads:
the applicant shall have access to judicial and, where appropriate, administrative redress procedures in the host State against any decision refusing to grant the residence status. The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate.
A person refused status under the scheme before 31 December 2020 may also make a further application under the scheme at any point before 30 June 2021.
A technical note of November 2017 confirms that those who have been refused will “be able to remain in the UK pending conclusion of the appeals process, unless a deportation decision is made, or the individual is in the UK in breach of a deportation or exclusion order”. That group might be removed before their appeal is heard, although they will be able to apply to return to the UK to attend their appeal hearing.
I have started an application for a document certifying permanent residence. Should I still apply or should I wait for the new system to come into place?
The government has repeatedly been telling EU nationals that they do not need to do anything at the moment.
Full guide to the requirements and process for naturalising as a British citizen, including where the Home Office will show flexibility and where not. Case studies included throughout.View Now
If you intend to apply for British citizenship, you might as well continue with your permanent residence application. This is because you will need to show that you acquired permanent residence one year before the date of your application for British citizenship (unless you are the spouse of a British citizen, in which case you will simply need to show that you have permanent residence). If you wait until the new system comes into place, you will need to wait 12 months after being granted settled status to apply for British citizenship, irrespective of how long you have lived in the UK.
You might also want to do the permanent residence application given that, once you have the document certifying permanent residence, switching to settled status will be free and apparently very easy.
You may also want to avoid the rush of three million people applying for settled status once the new system comes in.
On the other hand, those who do not have a straightforward application for a document certifying permanent residence, for example because they have been students during the five-year qualifying period but did not have Comprehensive Sickness Insurance, would be well advised to wait for the new system, where they will no longer be asked to show insurance.
This article was originally written in January 2018 and has been updated to take account of developments since.