The guidance finally confirms what has been a moot point since the EU Settlement Scheme was introduced on 30 March 2019. Are non-mandatory EEA residence documents of much value?
Over the last year, many EU citizens and their family members chose not to apply for a document certifying permanent residence and instead applied for settled status under the EU Settlement Scheme.
The EU settlement scheme was a welcome breather after the 85-page long EEA (PR) application form. In addition, the terms of the new scheme were incomparably more generous than the terms of the Regulations. Applicants did not have to prove that they had resided in the UK in accordance with the Regulations, did not have to show continuous employment, self-employment, a comprehensive sickness insurance. A mere proof of residence over a five-year period would suffice.
The application process for once has been made surprisingly uncomplicated – as long as you have a modern version of an android smartphone and can take a selfy. And even more surprisingly, the applications were processed remarkably smoothly, at least at the start.
Immigration specialists have always had concerns about the scheme. Its generosity left a good number of holes which could be filled differently depending on the political mood of the time and the type of Brexit in the air.
At Kadmos, we have always encouraged our clients not to skip the document certifying Permanent Residence. There are a number of reasons for this:
- EU Settlement Scheme offered concessions to people who didn’t qualify for permanent residence under the EEA Regulations. The most obvious way to prove that you didn’t fall under the concession is by a document issued by the Home Office which would just say so. Such document is a Permanent Residence card for family members of EU nationals or a document certifying permanent residence for EU nationals. They prove that you lived in the UK lawfully for five years, were exercising EU rights, and confirmed the date you acquired permanent residence.
- There is only a few months left – there won’t be a second chance to apply for a permanent residence document next year. If you acquired it in 2011 but got your settled status in 2019
- If you have children who were born in the UK at the time when you did not have proof of your settled status, they may be in a permanent limbo about their citizenship. With insufficient evidence that they are born British they may be unable to get a passport, with insufficient evidence that they are not born British, they may be unable to apply for registration or naturalisation.
The new guidance makes it clear that Settled Status document will not serve as confirmation of five year’s lawful residence. Those who cannot prove that they were exercising free movement rights under the EEA Regulations during a continuous five year period may have to take the date of the grant of settled status as the starting point of lawful residence. And wait for five years before applying for naturalisation, or three years if they are married to a British citizen.
The legality of this is questionable as the guidance ignores residence rights under the TFEU which were directly applicable under EU law and instead treated EEA Regulations as the ultimate source of rights. Whether there will be litigation on this point, I cannot predict. However, it will be the domestic courts who would have to grapple with this.
There is another concern – whether or not the so called “immigration breaches”, such as noncompliance with the EEA Regulations, would be dealt with as part of “good character” assessment. It is an important question, because good character is assessed as a matter of policy, not of statute. The current policy is that the applicant should not have committed any immigration breaches in the ten years prior to application for citizenship. This is much harsher than five years of lawful residence under the statute.
The new guidance does not deal with this directly but there is some suggestive ambiguity in the section about the discretionary powers to disregard “immigration breaches”:
“There is some discretion, in the special circumstances of a particular case, to disregard breaches of the immigration laws (unlawful residence) during the qualifying period. Such breaches only involve being here without leave to enter or remain. Other immigration offences, such as breaching a restriction on taking employment and harbouring other immigration offenders, should not be considered under the residence requirement, but under the good character requirement.”
Someone who is inclined to put a positive message in the text would find it easy to interpret the above as a promise to keep “unlawful residence” separate from “good character requirement”. Good character would be affected by illegal working or harbouring illegal migrants, but breaks between employment or failure to have a comprehensive sickness insurance would not go that far.
Unfortunately, one cannot have much confidence in reading positive messages into the text that were made ambiguous on purpose. What is clear from this ambiguity, is that it will create a double standard – for some it will be a discretionary waiver of the Regulations’ requirements, for others it would mean waiting for five years after settled status was granted, and for the least fortunate it would mean waiting for ten years since the breach occurred.
As always, ambiguity in the law erodes the rule of law – something to watch out for in immigration context.