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Six very frequently asked questions about the EU Settlement Scheme
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Six very frequently asked questions about the EU Settlement Scheme

As we approach 30 June 2021, the deadline to apply for the EU Settlement Scheme, people are increasingly and understandably worried about their applications. In this post, we* try to answer some of the most commonly asked questions about the scheme, for those who haven’t applied yet. You can find a more comprehensive guide to the application process here.

*Thanks to Chris Benn from Seraphus for his input on this article.

1. What if… I don’t have an identity document?

Generally speaking, the Home Office will expect all applicants, including children, to submit a valid identity document. “Valid” means not expired.

For EU citizens — including, for the purposes of this article, citizens of Norway, Iceland, Liechtenstein and Switzerland — the identity document can be a passport or national identity card. For non-EU citizens applying on the basis of a relationship with an EU national, it can be a passport, a biometric residence permit or a biometric residence card.

Some applicants do not have an identity document at the moment and may be struggling to obtain one because their embassies are closed due to Covid-19. Don’t wait until you are able to obtain a document if this brings you past the deadline of 30 June 2021. Instead, applicants should be aware of these two points:

(a) Your ID might still be valid despite the expiry date

Some countries have extended the validity period of their identity documents in response to COVID-19. Home Office guidance lists which countries have done this, for which type of identity documents, and the new expiry date of those documents.

Example

Gianni is an Italian national. He has an Italian passport which expired on 3 January 2021.

The Home Office guidance confirms that the expiry date for Italian passports and national IDs has been extended by the Italian authorities until 30 April 2021. This means that Gianni can submit an application under the EU Settlement Scheme relying on his passport until 30 April 2021.

Applicants who rely on ID with extended validity will not be able to use the app. Instead, they will need to complete the application form online and select the option of sending their ID to the Home Office by post.

(b) You can explain why you cannot obtain a passport

Applicants who simply cannot obtain an identity document can still submit an application. It won’t be as easy as applications with ID, because you will need to call the EU Settlement Resolution Centre and ask to be sent an application form by post. The EU Settlement Resolution Centre can be reluctant to send a form when they are not convinced that it’s impossible to get ID, but applicants who are genuinely in this situation should insist.

Applicants will also need to explain why they cannot submit ID when sending back the form. It is only in some circumstances that the Home Office will accept applications without ID, including when the applicant cannot produce the identity document “due to circumstances beyond their control or due to compelling practical or compassionate reasons”. Applicants should be prepared to explain in detail why they are unable to produce an identity document. If possible, they should include evidence of the efforts they made to get one.

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Lastly, applicants should try to submit alternative evidence of identity. For example, if they do not have a valid identity document but do have an expired one, the expired document can be sent.

Applicants submitting applications by post without an identity document should be prepared to wait longer for a decision. All in all, this solution is not ideal. But given how difficult EU citizens are finding it at present to have their documents renewed, and the fast approaching deadline, any applicant who is struggling to get a renewed document should call the EU Settlement Resolution Centre and ask for a paper application form.

(c) ID documents and children

In principle there is no distinction between a child and a parent in terms of the ID requirements. The Home Office wants the child to get an ID document and then apply (or have an application made on their behalf) as normal, using a smartphone app to scan the document. We’ve made a YouTube video showing how children’s applications work.

Depending on the country, it may not be possible at this stage to get an ID document for a child by the 30 June deadline. If that is the case for your EU citizen child, then — as we’re advising for adults — you should contact the Resolution Centre, request a paper application form and make the application using the child’s birth certificate instead. It may be that the Home Office will still ask for ID, delaying a decision on the application until that can be sourced, but at least the application will have been lodged in time.

What parents should absolutely not do is miss the deadline for the sake of waiting for ID documents. Get a paper form and make the application in time.

2. What if… I don’t have evidence of residence?

All applicants must show how they are eligible under the EU Settlement Scheme. Somewhat simplifying:

  • Applicants for settled status must show that they have lived in the UK for five continuous years, starting before 31 December 2020, and that, since the end of the five-year period, they have never been out of the UK for more than five years.
  • Applicants for pre-settled status must show that they moved to the UK before 31 December 2020 and that, since their last entry to the UK before 31 December 2020, they have not been absent for more than six months (or for more than twelve months if the absence was for an “important reason”; more on this below).

Many applicants will not need to submit their own evidence of residence. This is because the Home Office will use their National Insurance number to run automated checks. For example, HMRC should be able to confirm the residence of applicants who are employed and pay National Insurance contributions. But this system doesn’t work for everyone, for all sorts of reasons.

Whenever the Home Office automated checks can’t verify residence in the UK, applicants can submit their own evidence of residence. The Home Office website lists examples of preferred evidence. Ideally they want it to be ‘official’ sorts of documents, such as utility bills, bank statements, council tax bills and P60s. But, again, not everyone can submit that type of evidence. That is not the end of the road, and different types of evidence can be submitted depending on each case.

Example 1

Rose is a German national. She moved to the UK in the 1990s to do her master’s. In 1997, she married James, a British citizen. They went on to have three children, born in 2000, 2003 and 2007. After their first child, Rose decided that she would take a break in her career to be a full-time mother. She went back to work in 2019.

When they got married, James already owned the family home and had lived there for some years. They did not change the names on the bills so that they continue to be on James’s name. Rose has a bank account but for years she used James’ for the sake of simplicity. She only started using her account again when going back to work in 2019. All this means she is short on “official” evidence of residence.

Rose could ask her children’s schools to provide letters confirming that she has been dropping them off and picking them up every day for more than five years, that she has been attending parent-teacher meetings and that she has always been listed as the family member to call in case of emergencies. Such letters, along with the children’s birth certificates, ought to be enough to prove that Rose has lived in the UK for five years and is entitled to settled status.

Example 2

Pedro is a Portuguese national. He has been homeless for many years.

Pedro may be recorded on CHAIN, a multi-agency database recording information about people sleeping rough in London, which records can be obtained by organisations supporting Pedro with an application. In addition, charities which may have assisted Pedro in the past can provide letters confirming as much and giving dates. Again, this ought to be accepted as evidence of residence.

It is impossible to give examples for all possible scenarios, but the main message is that applicants should not be discouraged by the list of evidence on the Home Office website. If that evidence is available, then it is preferable, but other types of documents can be submitted instead.

3. What if… some of my documents are not in English?

By the nature of the EU Settlement Scheme, where applicants are showing that they have lived in the UK, much of the evidence is likely to be in English. But some essential evidence may be in a different language. For example, a non-EU citizen may need to show that they are married to an EU citizen; if their marriage was conducted abroad, the marriage certificate may be in a different language.

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In these cases, applicants should submit a certified translation or, if the document is a public document issued in an EU country, they can ask for a Multilingual Standard Form.

There is no exact definition of what a “certified translation” is. Generally speaking it should be a translation completed by a professional translator or translation agency. The translation should be dated, confirm that it is an “accurate translation” of the original document, and contain the details of the translator or translation company. The document does not need to be notarised, as long as the translation is professional.

Not all documents necessarily need to be translated, though. Given how expensive professional translations are, applicants may want to just submit the documents in the original, as in the example below. If the Home Office needs them translated, it should contact the applicant to ask.

Example

Marie is a Belgian national. She moved to the UK aged 65, having retired from her job in Belgium. She receives a letter from her pension provider every month. The letters are in French, but they show her name, address in the UK and date at the top. Marie wants to use the letters as evidence of residence. As the relevant evidence (name, address and date) can be read by English speakers, Marie can rely on that and does not need to get the contents of the letters translated.

4. What if… I was outside the UK for more than six months?

As mentioned above, applicants who want to apply for settled status need to show that they have lived in the UK for five continuous years, starting before 31 December 2020.

Continuity of residence is generally broken by absences of more than six months in any one year. However, not all absences of more than six months break the continuity. In particular, applicants will not have broken the continuity of their residence if:

  • During the five-year qualifying residence, they were outside of the UK for one single period of absence of up to 12 months, and the absence was for an “important reason”. Examples are pregnancy, child birth, serious illness, study, vocational training, an overseas posting or some absences due to COVID-19 (more on this below).
  • They were outside of the UK for any period of time on compulsory military service.
  • They were outside of the UK for any period of time on a posting on Crown Service; or accompanying a partner or child on a posting on Crown Service.
  • They were working in the UK marine area.
Example

Francois is a French national. He moved to the UK in September 2018. He applies and is granted pre-settled status, in January 2021. His pre-settled status is valid until January 2026.

Francois then leaves the UK between March 2021 and October 2021 (seven months) to study abroad as part of a UK university degree.

As the absence was for more than six months but less than 12 months, he can rely on the exception of having been absent for an “important reason”. Francois can only rely on this exception once.

Having established what breaks continuous residence, here is how long absences can affect applicants in different scenarios.

Applicants who have lived in the UK for more than five years

It is important to clarify that a settled status applicant does not need to rely on the most recent five-year period. If an applicant has recently broken the continuity of their residence, but had a previous period of five years during which they did not break the continuity of their residence, they can rely on that previous period.

Example

Nikolas is a Finnish national. He moved to the UK as a student in September 2012. He studied his undergraduate degree between September 2012 and June 2015, during which time he only went back to Finland for two weeks every Christmas and two weeks during each summer. He then completed a master’s, between September 2015 and September 2016, again only leaving the UK for short periods of time.

In October 2016, Nikolas started his PhD. The first year or so were mostly desk-based and he was not out of the UK for extended periods of time. However, between January 2018 and December 2018, he was conducting field research abroad and was outside of the UK for ten months. He has been back since January 2019 and has only had short periods of absences after that.

As we will see below, Nikolas may be able to rely on an exception, on the basis that he was out of the UK for more than six months due to his studies. But it may be easier for Nikolas to just rely on the five-year period of residence between September 2012 and December 2017, during which time he did not break the continuity of his residence.

Even applicants who no longer live in the UK can apply for settled status if they lived here for more than five continuous years in the past and, since the end of that five-year period, they have never been absent for more than five consecutive years.

Example

Zuzanna is a Polish national. She lived in the UK continuously between February 2006 and April 2013. She has since moved back to Poland. Since April 2013, she has been back to visit the UK twice: once in September 2016 and once in August 2019.

Zuzanna is eligible for settled status. She had a continuous period of residence of more than five years between February 2006 and April 2013; and, since April 2013, she has never been out of the UK for more than five consecutive years.

Zuzanna will need to submit evidence of these facts. In this case, it would be sufficient for her to show that she entered the UK in September 2016, as there were less than five years between April 2013 and September 2016, and less than five years between September 2016 and June 2021 (the last date she can apply for settled status).

In short, applicants who have had a five-year continuous period of residence in the UK in the past will not be affected by the kind of short absences discussed below. They would only be negatively affected by absences of more than five years.

Applicants who have lived in the UK for less than five years

The situation is different for applicants who have lived in the UK for less than five years. Again simplifying slightly: if they break the continuity of their residence after 31 December 2020, they are highly unlikely to ever be eligible for settled status. If they broke the continuity of their residence before that date, all may not be lost.

Applicants who break the continuity of their residence after 31 December 2020

Example

Let’s return to the example of Francois from above. Francois moved to the UK in September 2018 and was granted pre-settled status in January 2021, valid until January 2026.

In March 2021, Francois is made redundant and decides to take a career break. He leaves the UK and travels to Bali, where he stays until October 2021 (so seven months). He then returns to the UK, which his pre-settled status entitles him to do.

Francois will have lived in the UK for five years in September 2023 and thinks he can apply for settled status anytime between then and January 2026 (when his pre-settled status expires). However, the seven-month absence he has had between March 2021 and October 2021 will have broken the continuity of his residence.

At this point, you may be thinking “hang on, I was told I wouldn’t lose my pre-settled status unless I left the UK for more than two years?”. That’s correct, and explains why Francois was able to return to UK after his seven-month absence (in theory he could have left it another year and five months). The issue is the right to upgrade to settled status: Francois would keep his pre-settled status until it expires but never qualify for settled status. In January 2026, he would need to leave the UK or make an application to remain under the normal UK visa system.

So: anyone who wishes to reach settled status should ensure that they are not out of the UK for more than six months — rather than two years.

Applicants who break the continuity of their residence before 31 December 2020

Example

Marta is a Spanish national. She moved to the UK in September 2018. In February 2019, she applied for and was granted pre-settled status, valid until February 2024.

Marta then leaves the UK in January 2020, and only comes back in November 2020.

If Marta does nothing, she will be in a difficult position in February 2024, when her pre-settled status expires, because she broke her continuous qualifying residence in July 2020 once she was outside the UK for more than six months (like Francois above).

However, Marta could apply again for pre-settled status before February 2024. This is possible because she already had pre-settled status and moved back to the UK in November 2020, before the end of the transition period. The Home Office has confirmed that the normal 30 June deadline does not apply in this scenario. If Marta had instead returned after 31 December 2020, a second grant of pre-settled status would not be available to her.

So if Marta re-applies for pre-settled status in, say January 2024, and is granted another round of pre-settled status valid until January 2029, she would be eligible to apply for settled status any time between November 2025 (the five-year anniversary of her re-entry to the UK) and January 2029 (the expiry of her pre-settled status).

5. What if… I was stuck abroad due to COVID-19?

The Home Office has issued guidance confirming that absences due to COVID-19 can be “an important reason” justifying an absence from the UK of more than six months. But not all COVID-19 absences would be eligible for this exception. Firstly, the absence cannot be for longer than 12 months. Secondly, the applicant must have been prevented from travelling due to COVID-19 and will need to submit evidence of that. It seems that it will not be sufficient for an applicant to have simply preferred to stay abroad due to COVID-19 if they physically could travel back.

Example

Elena is a Romanian national. She moved to the UK in November 2018 and was granted pre-settled status in March 2019, valid until March 2024.

In February 2020, she travelled to Romania. She was prevented from returning to the UK until June 2020. She could then have taken a flight back to the UK but, as she had been furloughed, she decided to stay with her parents in Romania. She travelled back in November 2020.

From how the guidance is worded, it seems that the Home Office would say that Elena cannot rely on the COVID-19 exception because she could have travelled back to the UK before six months had passed.

To be on the safe side, Elena should re-apply for pre-settled status before March 2024, relying on the fact that she resumed her residence in the UK in November 2020. That way, if the Home Office argues that she broke the continuity of her residence between February 2020 and November 2020, she would still be eligible to apply for settled status between November 2025 (the five-year anniversary of her re-entry) and the expiry of her new pre-settled status.

In our example above, Elena was furloughed, meaning that she continued to be paid by her employer even while she was abroad. Other applicants may simply be working remotely, especially during COVID-19. As we said above, the Home Office will do their own checks with HMRC to verify an applicant’s residence in the UK. Someone like Elena might very well appear to the Home Office to have been continuously resident in the UK, and, if she applied for settled status in November 2023, on the five-year anniversary of her first entry to the UK, she might well be offered it. However, this would be legally incorrect because Elena broke the continuity of her residence.

Applicants should not rely on these “false positives”. Applicants will need to make a declaration at the end of the application process confirming that the evidence they relied on is accurate and reflect their actual residence in the UK. That evidence includes automated checks and should not be relied on if it does not reflect their actual residence.

6. What if… I already have a UK residence card?

Many non-EU family members of EU nationals will have applied for documents proving their right to reside in the UK well before Brexit was “a thing”. They would have been granted EEA residence cards or EEA permanent residence cards. Some EU citizens themselves also started getting documents to prove their residence in the UK, particularly in the aftermath of the Brexit referendum, and would have been issued with EEA registration certificates or documents confirming permanent residence.

Those documents do not protect their long-term status in the UK. This may seem counter-intuitive, especially for those who have been issued “permanent” documents and thought this would protect them, well, permanently. Similarly, EEA residence cards may show an expiry date well beyond June 2021.

But such applicants still need to apply for status under the EU Settlement Scheme before 30 June 2021. Anyone who has not applied by then, even if they already have EEA documents which, on the face of it, appear to be valid, may become overstayers in the UK and will be subject to the hostile immigration environment.

Nath is an immigration solicitor and Senior Caseworker at Islington Law Centre. She is also a co-convenor of the ILPA Family and Personal Migration Working Group and a trustee of JCWI. She tweets: @NathGbikpi.

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