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Yet more details on the status of EU nationals after Brexit

Yet more details on the status of EU nationals after Brexit

On 14 February 2018 the Home Affairs committee of MPs published a rather critical report on the Home Office delivery of Brexit, which Nick promptly summarised in a post at the time.

The government’s response to the report was published on 25 May. A lot of it is not news, but rather a repetition of what we already knew, including that:

  • EU nationals arriving in the UK between 29 March 2019 and 31 December 2020, and intending to stay longer than three months, will need to register (unfortunately, we do not yet have details on this registration scheme)
  • EU nationals and their family members will have until 30 June 2021 to apply under the new “EU Exit Settlement Scheme” (which we have been calling “settled status” on this website up to now)
  • The new EU Exit Settlement Scheme will be launched by the end of the year
  • EU nationals residing in the UK before 31 December 2020 will be able to have their family members join them, provided those family relations existed before that date. Future partners will need to meet the requirements of the domestic Immigration Rules
  • The Dublin III arrangements will continue to apply during the transitional period

There are also, though, new details which are worth drawing attention to.

Permanent residence for EU citizens not in the UK at the time of Brexit

Once a person has acquired permanent residence under EU law, they lose it only if they are away from the UK continuously for a period of two years .Therefore, there are EU nationals who are currently not living in the UK but continue to have permanent residence here.

Example

Julien, a French national, worked in the UK between June 2010 and September 2015. In June 2015, on the fifth anniversary of his work in the UK, Julie acquired the right to permanent residence. In September 2015, he went back to France, where he continues to live. He returned to the UK for one weekend in June 2017. Julien has never spent more than two continuous years outside the UK, and therefore continues to have the right to permanent residence here.

It was unclear whether people like Julien could acquire settled status under the new scheme. The government’s response to the report seems to suggest they can, provided they return before the end of the implementation period, on 31 December 2020:

An EU citizen who has lived lawfully and continuously in the UK for five years or more will have obtained permanent residence under EU law. We have agreed with the EU that such a person can then be absent from the UK for up to five years and still be considered resident, ensuring that they can still benefit from the protections of the Withdrawal Agreement. Therefore, those who obtained permanent residence in the UK and were then abroad for up to five years, for example, on business or holiday, or temporarily living abroad, before returning here before the end of the implementation period will still be eligible to apply for settled status.

Therefore, if Julien decides to return to live in the UK on 1 October 2020, he will be able to apply for settled status, rather than register under the scheme for newly arrived migrants. He will then not lose that settled status unless he leaves the UK for a period of five years.

Early applications for settled status

The new EU Exit Settlement Scheme is due to be launched by the end of 2018. But the legal basis for it — the Withdrawal Agreement between the EU and UK — is not due to be in force until 31 March 2019. What status will EU citizens and their family members applying under the scheme be granted, then?

Successful applicants will be granted indefinite leave to remain (ILR) with the same rights and access to benefits, education and healthcare as those who have acquired it under current UK Immigration Rules, except insofar as the agreement makes special arrangements. For example, ILR granted under the scheme will lapse after five years’ absence from the UK not the usual two.

This status, granted under UK law, will sit alongside free movement rights before exit and for the duration of the implementation period, without prejudice to the full enjoyment of those rights for that period. This will, however, give ILR holders the certainty they have secured their UK immigration status once free movement falls away at the end of the implementation period.

The full enjoyment of free movement rights include the ability to have their direct family members joining them in the UK without having to show that they meet the domestic British Immigration Rules.

It is also good to know that a failed early application will not prejudice an applicant’s right to live in the UK. It will attract a right of appeal, and an applicant may re-apply at any time before the deadline of 30 June 2021:

Any applicant refused status under the scheme will still be able to assert their free movement rights and will retain their right of appeal against any restriction of those rights under the Immigration (EEA) Regulations 2016 before and during the implementation period.

The legislation implementing the Withdrawal Agreement will provide a statutory right of appeal for those refused under the scheme who apply under it from exit day. Irrespective of whether a person successfully applies for settled status under the scheme before or after that legislation takes effect, they will, if granted, be granted the same status in UK law, namely indefinite leave to remain, and if refused but not subject to a deportation order, they may also re-apply up until the deadline (30 June 2021).

Non-EEA nationals with EU law rights: Chen, Ibrahim & Teixeira, Zambrano and Surinder Singh

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Colin previously highlighted the unclear position of those non-EEA nationals who benefit from EU law residence rights derived from an EU citizen. These rights are complicated, and not a concern for most people. But they are very important for Zambrano, Chen, Ibrahim and Teixeira carers (so called after the name of the court cases establishing their rights). Other non-EEA citizens affected by Brexit are family members of British nationals who return to the UK after having exercised their treaty rights in another EU member state (the Surinder Singh route).

The position of Zambrano carers remains very much uncertain. The government’s response limits itself to saying that “domestic policy proposals relating to Zambrano carers will be set out in due course”.

However, we now have reassurances that:

The residence rights of primary carers of self-sufficient EU citizen children in the UK who derive a right of residence from Article 21 TFEU (Chen) will be protected by the Withdrawal Agreement until the child no longer requires the primary carer’s presence to enjoy their own rights under the Agreement. The same applies to primary carers of self-sufficient UK national children in the EU.

and, for Ibrahim and Teixera children

Children of former EU citizen or UK national workers who are in education in the UK or the EU will be able to remain to complete their education (Ibrahim & Teixeira). The associated derivative residence rights of their primary carers will be protected for as long as the child requires the primary carer’s presence to continue or complete their education.

Unfortunately, Chen and Ibrahim / Teixera carers will not be able to obtain settlement under the new scheme, only a temporary status.

Those family members of British citizens who entered the UK relying on the Surinder Singh route before 31 December 2020 will also be eligible to apply under the UK’s settled status scheme.

Comprehensive Sickness Insurance

The government announced some time ago that they will not require EU citizens living here as students or self-sufficient people to prove that they have held Comprehensive Sickness Insurance when they apply for settled status in the UK.

This reassurance was always followed by the proviso that “In some circumstances, however, CSI is still required for the purposes of accessing the healthcare system in the UK”.

It is now clear that this refers to

Any EU citizen travelling to the UK during the implementation period and who is not ordinarily resident here will continue not to be eligible for NHS-funded care. Such individuals should have the necessary CSI depending on their circumstances, for example a European Health Insurance Card or an S1 form so as to avoid being charged directly for any care they need.

A streamlined, efficient process

The government has given repeated reassurances that the new process for European nationals and their family members will be a digital, user friendly system. In this spirit, we now also know that applicants who have not submitted all of the necessary information to be granted leave under the new settlement scheme will be given an “opportunity to furnish supplementary evidence or remedy any deficiencies where it appears a simple omission has taken place”

For citizenship cases, “UKVI is thinking about “introducing a new ‘front end’ process in the Autumn of 2018 which will streamline the customer experience, as well as exploring the introduction of a priority service”.

Interesting also to see a reference to the “Windrush scandal”:

The government is also carefully considering the lessons learned from the treatment of Windrush generation migrants who had lawful status in the UK but did not have the necessary documentation to prove it, and will ensure these important lessons are reflected in the design of any new system of controls introduced for EU citizens after the UK leave the EU.

And finally, beyond Brexit

The government’s response also mentioned, in passing, the possibility of a restructuring, or at the very least a renaming, of the Points Based System:

We will use plain English remove the out-dated terminology of tiers and points-scoring. Our aim is to make the rules as easy as possible for applicants and their sponsors to understand and use.

CJ has already covered this on the blog, although there is nothing really to add to our understanding of this slightly cryptic statement.

 

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