On 8 December the British government reached an agreement with the EU which gives some more clarity about the status of EU nationals following Brexit. The agreement so far is limited to EU nationals who arrive in the UK before the “specified date” of 29 March 2019.
• People who, by 29 March 2019, have been continuously and lawfully living here for 5 years will be able to apply to stay indefinitely by getting ‘settled status’. That means they will be free to live here, have access to public funds and services and go on to apply for British citizenship.
• People who arrive by 29 March 2019, but won’t have been living here lawfully for 5 years when we leave the EU, will be able to apply to stay until they have reached the 5-year threshold. [I am calling this “temporary status”.] They can then also apply for settled status.
• Family members who are living with, or join, EU citizens in the UK by 29 March 2019 will also be able to apply for settled status, usually after 5 years in the UK.
• Close family members (spouses, civil and unmarried partners, dependent children and grandchildren, and dependent parents and grandparents) will be able to join EU citizens after exit, where the relationship existed on 29 March 2019.
So, how are we to apply for “settled status” or “temporary status”? Here are my answers to what remains at the moment a bit of a guessing game, based on the information which is publicly available so far and my experience as an immigration lawyer. The published information on the application system now under construction includes a UK government technical note, recent oral evidence from immigration minister Brandon Lewis before a House of Lords committee and a detailed Q&A from the European Commission.
As the government likes to say, “nothing is agreed until everything is agreed”, so readers should not yet rely on this post to plan their applications. I will keep updating it as more information comes in, hoping that all the holes will be filled before the new system comes in!
How do I apply?
Online, in a “few minutes”.
Currently, submitting an immigration application online actually means completing a form online, paying the fee, and then printing off the completed application to post it to the Home Office. From conversations with the Home Office, though, we understand that the intention is to have the settled and temporary status system entirely online.
The Home Office has not indicated whether those who have straightforward applications will be allowed to use the Premium Service Centre, which allows applicants to receive an answer on the same day. That would certainly be welcome news.
What will I need to submit?
All applicants will presumably need to submit the application form, a proof of identity and passport-size photographs. Family members of EU nationals will also need to submit proof of their relationship, such as marriage or civil partnership certificates, birth certificates etc. Again, the Home Office says that it is trying to make it so that these can be scanned and uploaded online rather than posted in.
In addition, for those applying for settled status who do not have a document certifying permanent residence, they will need to submit evidence of residence covering a period of five years and evidence of their current residence.
For those applying for settled status who already have a document certifying permanent residence, they will only need to submit evidence of their current residence.
Those applying for temporary status will likewise need to provide evidence of current residence.
The government has confirmed that EU citizens themselves will not need to give their fingerprints. However, it is likely non-EU national family members will continue to have to give their fingerprints.
What counts as evidence of residence?
Here there seems to be a contradiction between the letter of the agreement and what the government is saying.
Under the current law, applicants for permanent residence need to provide evidence that they are or have been “exercising treaty rights” in the UK, that is working, being self-employed, job-seeking, a student or self-sufficient. To exercise treaty rights as students or self-sufficient, EU nationals must also have Comprehensive Sickness Insurance and that they have sufficient resources not to become a burden on the welfare system of the UK.
As we have pointed out before, the agreement on temporary and settled status does not cover people who are not exercising treaty rights. The European Commission assumes that such people “will have no legal entitlement to stay in the UK and their situation will depend on whether the UK authorities decide to treat them more favourably than required by the deal”.
In front of the House of Lords committee, however, Brandon Lewis repeatedly said that EU nationals will only need to evidence that they have been and are living in the UK in order to qualify for settled status:
All we will need to confirm is that there is no criminal record issue and that the person applying really has been, and is, living in the UK.
In the settled status system, somebody simply needs to show that they are an EU citizen living in the UK before the date. That is it. There are no issues around their relationships or their income.
the only circumstances in which I can foresee someone not being granted settled status is either if the criminal records check clearly shows that they are a criminal, or if someone claims to be an EU citizen in the UK but is not, which would be a fraudulent application.
If this is the confirmed Home Office approach, then correspondence addressed to you in the UK – such as utility bills, council tax bills or bank statements – will have the same value as evidence of work in the UK and will also be sufficient to get settled status, independently of what you have been doing while living in the UK.
More likely, applicants will be asked to provide proof of their exercise of treaty rights (e.g. evidence of work). For those who do not have this evidence, they should provide evidence of residence only and the Home Office will be exercising its discretion.
What about Comprehensive Sickness Insurance?
The government has given assurances that Europeans will not have to show evidence that they held Comprehensive Sickness Insurance to be granted settled status. Brandon Lewis has specifically said:
we are removing the need to demonstrate comprehensive sickness insurance… to secure settled status.
Again, as the European Commission emphasises, this is a unilateral, discretionary policy rather than a requirement of the agreement.
But it is not clear what will be the position of those who are applying for temporary status (rather than settled status), and who are in the UK as students or self-sufficient persons? To the best of my knowledge, the Home Office has not confirmed that those groups will also not need to show that they hold CSI.
What if I don’t have evidence of residence?
Brandon Lewis has said that “the presumption is in favour of the individual to have that status granted to them”.
The technical note also states that
Our intention is to develop a system which draws on existing government data, for example, employment records held by HMRC will be checked, which will, for the majority, verify residence as a worker. Our priority is to minimise the burden of documentary evidence required to prove eligibility under the Withdrawal Agreement.
In other words, those who have been working and struggle to provide evidence of residence should not worry too much, as the Home Office will apparently do the work for you. That said, it is of course preferable to submit evidence yourself to avoid delays.
What about criminal records?
All applicants will be subject to criminality and security checks. The technical note says that
the intention is to ask applicants to self-declare criminal convictions (either UK or overseas)… We will check appropriate UK biographic criminal records databases. In specified cases, where we have good cause, we may seek to verify international declared convictions or identify any international criminality.
This seems to mean that applicants will simply need to declare any criminal issues on their form, which will then be checked by the Home Office, rather than having to submit positive evidence of their criminal records (like, for example, those applying for Tier 2 (General) entry clearance). That would make sense in the spirit of creating a “simple” system.
How much does it cost?
According to the Home Office’s website, “the application fee will be no more than the cost charged to British citizens for a UK passport. If you already have a valid permanent residence document, it will be free”.
A UK passport costs £72.50.
When should I apply?
Every EU national and their family will need to make an application before the deadline, which seems to be 29 March 2021, two years after the “specified date”.
The system is supposed be open from autumn 2018.
People who may want to apply earlier rather than later include non-EU family members of EU nationals whose current documents will expire before 29 March 2021. Although they will continue to have a right to live in the UK, they may want to get their new documents early for practical reasons, including to prove to employers, landlords and banks their right to live and work in the UK.
On the other hand, those who have not yet reached the five years but will by 29 March 2021 may want to wait until the five-year anniversary of their residence in the UK to apply. If not, they will be granted temporary status first, and will then need to make a second application for settled status once they have reached the five-year mark.
What happens after I have submitted my application?
Brandon Lewis said that applicants will have a decision on their application “within a couple of weeks”.
What if I get refused?
According to the immigration minister and the technical note, those who apply before the coming into force of the Brexit withdrawal agreement will have a right to an administrative review. In other words, they will ask Home Office caseworkers to check the decision.
Those who apply after the coming into force of the withdrawal agreement will instead have a statutory right of appeal. That is, they will be allowed to appear in front of an independent judge who will decide whether they should have been granted status.
The technical note confirm that those who have been refused will “be able to remain in the UK pending conclusion of the appeals process, unless a deportation decision is made, or the individual is in the UK in breach of a deportation or exclusion order”. That group might be removed before their appeal is heard, although they will be able to apply to return to the UK to attend their appeal hearing.
That said, according to Lewis, no one should worry about being refused unless they are a criminal or are fraudulently claiming to be a EU citizen living in the UK.
I have started an application for a document certifying permanent residence. Should I still apply or should I wait for the new system to come into place?
The government has repeatedly been telling EU nationals that they do not need to do anything at the moment.
However, if you intend to apply for British citizenship, you might as well continue with your permanent residence application. This is because you will need to show that you acquired permanent residence one year before the date of your application for British citizenship (unless you are the spouse of a British citizen, in which case you will simply need to show that you have permanent residence).
You might also want to do the application given that, once you have the document certifying permanent residence, switching to settled status will be free and apparently very easy.
You may also want to avoid the rush of three million people applying for settled status once the new system comes in.
On the other hand, those who do not have a straightforward application for a document certifying permanent residence, for example because they have been students during the five-year qualifying period but did not have Comprehensive Sickness Insurance, would be well advised to wait for the new system, where they will no longer be asked to show insurance.