The UK Government has announced the EU Settlement Scheme – a new procedure for EU nationals and their family members to register their right of residence in the UK after Brexit. The scheme will be fully rolled out from 30 March 2019. A pilot phase has been running since 21 January 2019 and is open to all those who meet the relevant criteria (detailed below).
EU citizens and their family members resident in the UK, who have not acquired British citizenship, will have to register by 30 June 2021 or 31 December 2020 in case of a no-deal Brexit. Those who stay but fail to apply by the deadline will be seen as remaining in the UK illegally.
Some groups, including Irish citizens and their family members and those who already have indefinite leave to enter or remain in the UK (not to be confused with permanent residence under the European Regulations), will not have to apply under the Scheme.
The test phase is open from 21 January 2019
The Scheme is now open to EU citizens with current biometric passports (national identity cards are not acceptable) and family members with biometric residence cards. ID documents must be scanned using an app which is currently only available on Android.
Those without biometric ID documents or access to an Android smartphone will be able to apply when the scheme opens fully on 30 March 2019.
Application and status
Applications are made online and require the applicant to give information about their identity, residence in the UK and declare any criminal offences. It is not required to demonstrate the exercise of treaty rights. Those applying as family members also need to provide information about their relationship with the EU citizen.
As part of the process, the Home Office carries out an automated check using tax and benefit records from HMRC and the Department for Work and Pensions to determine how long a person has been residing in the UK. If the checks are inconclusive, applicants still have the option of uploading evidence of their residence in the UK via an online portal.
Those who have been in the UK for five years qualify for confirmation of a settled status. Those who fall short of this residence requirement are given pre-settled status for five years and have to apply for settled status before its expiry. A person’s status is viewable online. EU citizens are not issued with any physical documents in confirmation of their settled or pre-settled status. Non-EU national family members of EU citizens are issued with a Biometric Residence Permit (BRP card).
Holders of settled status have the right to remain in the UK permanently and will be allowed to spend up to five years abroad without losing this right. They will have the right to work, study, use the NHS and access benefits.
Those with settled or pre-settled status will be able to bring close family members like partners, children and dependent parents to the UK after 31 December 2020 as long as their relationship began prior to this date.
The Home Office has not yet published a service standard for applications under the EU Settlement Scheme. In our experience, the longest waiting time has been for two weeks. It is expected that applications from EU citizens and their non-EU family members will be “linked” when made together or around the same time and will be processed more quickly than those of family members applying on their own.
On 21 January 2019, the UK Government announced that applications made from 30 March 2019 will be free of charge. Those applying before this date will have to pay a fee of £65, or £32.50 for children under 16, but these fees will be refunded.
No deal scenario
The government has said that EU citizens and their family members will be welcome to remain in the UK regardless of whether a Brexit deal is reached. However, their rights will be limited in several ways in a no-deal scenario.
– The deadline for applications would be moved forward to 31 December 2020 (currently 30 June 2021).
– Only those who are resident in the UK by 29 March 2019 would be able to benefit from the Scheme. In a more favourable scenario, it will be available to EU citizens and their family members who arrive in the UK by 31 December 2020.
– EU citizens with settled status would only be able to bring their family members to the UK by 29 March 2022. Current plans do not include a cut-off date for applications made by family members who had a pre-existing relationship before 31 December 2020.
– There would be no right of appeal – refusals would be challengeable only by Administrative or Judicial Review (whereas the current Withdrawal Agreement protects appeal rights post-Brexit).
– The EU deportation threshold would only apply to crimes committed before Brexit. The higher UK deportation threshold would apply to any crime committed after 29 March 2019.
Should you apply for settled status or a permanent residence document under the EEA Regulations?
While applications under the EU Settlement Scheme will be simpler, it is important to note that the Home Office will not backdate settled status in the same way it backdates permanent residence documents under the EEA Regulations.
This means those who are granted settled status will have to wait for 12 months before they are eligible for naturalisation (unless married to a British citizen).
The date of acquiring settled status may also have a bearing on the nationality of your children. A child born to a settled person is British by birth. A child born in the UK to a parent who becomes settled after the child’s birth, has the right to be registered as a British citizen.
If you’re an EU citizen who has been economically active or self-sufficient for a period of more than five years and would like to apply for British citizenship, you should consider applying for a document certifying permanent residence now.