- How do I apply?
- What will I need to prove?
- How much does it cost?
- When should I apply?
- 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 8 December 2017 the British government reached an agreement with the EU which gives some more clarity about the legal status of EU citizens following Brexit. A draft treaty followed on 19 March, which confirms that the agreement 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.
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 for settled status to the Home Office. Contrary to many of today’s 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.
So how are we to apply for “settled status” or “pre-settled status”?
The application system, branded the EU Settlement Scheme, is not yet up and running. But on 21 June 2018, the Home Office released what it calls a statement of intent with a lot more detail about it. The document does come with the usual proviso that “full details of the scheme are still subject to approval by Parliament”. Because of that caveat, readers should not yet rely on this post to plan their applications (although I very much doubt major changes will be brought in at this stage). I will keep updating it as more information comes in.
How do I apply?
Generally, online. There will be the option of a paper application form, but we don’t know who will be allowed to use it. According to the statement of intent, “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 (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”), and, occasionally, proof of residence (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 Premium Service Centres.
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, while those applying for pre-settled status will need to show current residence in the UK.
The statement of intent confirms that continuous residence simply means having lived, or living, in the UK. 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 statement of intent.
The document also confirms that
this guidance will not be prescriptive or definitive. We recognise that some applicants may lack documentary evidence in their own name for various reasons, and we will 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. But if you are Nigerian and married to an Italian, you can apply under the Settlement Scheme, but different rules apply.
You can find a detailed list of which family members are eligible for the scheme at pages 23 to 30 of the statement of intent
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 statement of intent encourages this, so as to avoid submitting the same evidence twice.
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 a document certifying permanent residence?
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.
Those who have previously been issued a permanent residence document will be able to exchange it 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. It is unclear what evidence they will need to submit to prove they have not been absent, but presumably automated checks with HMRC will be carried out, and, if they fail, applicants will be invited to submit their own evidence of residence.
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. 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.
Legal jargon coming up: criminal conduct before the end of the Brexit transition (31 December 2020) will be assessed according to the current EU public policy tests for deportation (see details in this post). Conduct after that period will be considered against UK deportation thresholds (see details in this post).
What this means in practice is that applicants with criminal convictions post-dating 31 December 2020 will be more likely to have their applications refused that those with convictions predating that time. Minor offences, such as parking fines, will not be grounds for refusal, although applicants are advised to declare all offences, including minor ones.
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 eligible family members who are not Irish or British will be able to obtain status under the scheme, even if the Irish citizen does not do so.
How much does it cost?
Subject to approval by Parliament, 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
When should I apply?
The system is supposed have a “phased roll-out from late 2018” and “will be open fully by 30 March 2019”. It’s not 100% clear what this means, but presumably it indicates some applicants won’t be able to apply until then.
Once it goes live, 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 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 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”. Timelines are not covered in the statement of intent, but the Home Office told me this morning that most applications should be decided in “a few days”. Less straightforward ones might take longer, though, and the department is not guaranteeing a several-day turnaround in at periods of high demand. It intends to publish current waiting times so that people will have an idea of how long the wait will be at any given time.
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. In other words, they will ask Home Office caseworkers to check the decision.
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 17(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. They 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.
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 updated to take account of developments since.