Advice Centre

Mar

The future status of EU citizens; settled and pre-settled status explained

There were many theories, as to what the status of EU nationals living in the UK would be as a result of Brexit and the expected end to the free movement of people. Indeed, after a long period of uncertainty, the wait seems to be over following Teresa May’s announcement from 21 January 2019, confirming that all EU citizens living in the UK prior to exit from the EU will be allowed to stay. EU nationals will be required to register under the new scheme of ‘settled status’. Current guidance is that the deadline for applications for settled status will be 30 June 2021 or 31 December 2020 if the UK leaves the EU without a deal.

Applicants would fall into two categories:

  1. Settled status: those EU nationals who are able to evidence a continuous five-year period of lawful residence in the UK;
  2. Pre-settled status: Pre-settled status is for EU citizens and family members who have not lived in the UK for five years on December 31, 2020. They can continue to live in Britain until they reach the five years of continuing residence, then apply to change their pre-settled to settled status for no fee. They do still need to apply for pre-settled status in order to be eligible for settled status.

Application process

The process for approximately 3.5 million EU citizens living in the UK has been made simpler by introducing a digital application form to be used on android devices. It only requires proof of identity, residency in the UK, a photograph and a fee of £65.00, or £32.50 for children. There will be no fee when the scheme fully opened in March 2019, and those that applied in the test phase will be eligible to a refund.

Additionally, those EU nationals who already obtained permanent residency document by the specified date will have the advantageous position. They will still have to follow the administrative procedures they will be allowed to exchange their old card for the new settled status document free of charge but will not have to provide any additional evidence of exercising the Treaty rights.

Eligibility of Family Members

Under the new guidance, family members of EU citizens already living in the UK such as spouses, civil and unmarried partners, as well as extended family members like children and dependent relatives, will be eligible to apply. It is advisable to apply at the same time or after the EU citizen applies, to obtain the decision faster.

Indeed family members from outside of the EU will also be eligible to apply and join EU nationals provided the relationship requirements are met and the EU citizen obtained settled or pre-settled status.

For a swifter process, it is possible to ‘link’ the application of a family member to that of EU citizen. If EU citizen applies first, all that is needed is their application number. However, if the family member applies first and does not hold a valid permanent residence document, it is required to also enclose proof of EU citizen’s identity and residence with the application.

Problems?

Before the Home Office published details of the scheme, concerns had already been expressed over nationals who may be at risk of failing to secure the new status. This particularly refers to the ‘grey area’ which often involves the residency status of non-economically active citizens, such as nationals who are not working.

It also does not accommodate applicants who are self-employed as providing just national insurance number may not be sufficient to evidence lawful residence in the UK. Such applicants will be required to send additional proof, which becomes a lengthier process involving paperwork, which is what the Government aimed to eradicate with the introduction of the new scheme.

Another difficult part of the scheme is its approach to criminality checks. They do not currently allow to comply with Article 28, Directive 2004/38 provisions protecting EU citizens against exclusion. Currently, the EU Court of Justice states that having a criminal background should not automatically mean that applicants with criminal records are to be rejected or deported on that basis. Indeed the new scheme does not address this issue and undoubtedly it will cause problems for such individuals to obtain their settled status.

 Summary

The Government’s efforts at aiding the protection of rights of EU citizens and creating an effective application process are evident however, it appears there are concerning flaws in this scheme that require consideration.

If you are an EU citizen who needs advice or assistance in the application process under the new settlement scheme, get in touch with one of our specialist immigration solicitors today.

For a confidential discussion about your immigration status, discussing best option for securing your future in the UK, please contact Iwona Durlak at i.durlak@imd.co.uk or Maria Mazurenko at m.mazurenko@imd.co.uk or call us on  0333 358 3062 ( calls are charged at local rates).

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