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The EU Settlement Scheme

There are estimated to be over 3 million EU citizens residing in the UK. The UK left the EU on 31 January 2020. There was a transition period until 31 December 2020 which allowed EU citizens to enter and remain in the UK under the principle of free movement until the end of that period.

Any EU citizens residing in the UK by 31 December 2020 can apply (by 30 June 2021) for the right to remain in the UK indefinitely under the EU Settlement Scheme. A new immigration system has applied from 1 January 2021. EU citizens wanting to enter the UK from after 31 December 2020 will need to meet the criteria of the immigration rules in place at that time.

If you are an individual or an employer and require assistance with preparing for Brexit, please get in touch with the Immigration team at FSP.

Free movement rights

EU citizens and their family members benefitted from freedom of movement, under EU Law. Freedom of movement allows EU nationals and their family members to enter and reside in any EU member state other than that of which they are a national for three months without restrictions. If they wish to reside there for over three months, the EU citizen must “exercise a Treaty right” by engaging in work, being self-employed or self-sufficient (and holding comprehensive private medical insurance (CSI)) or engaging in study (and holding CSI).

Irish citizens do not require immigration permission under the EU Settlement Scheme to continue to live in the UK without restrictions, their family members may qualify for immigration permission under the EU Settlement Scheme.

Agreements with EEA EFTA states and Switzerland

In December 2018, the UK reached agreements with Iceland, Liechtenstein, Norway (EEA EFTA states) and Switzerland to address separation issues, including protecting the rights of their citizens living in each other’s countries. EEA EFTA and Swiss nationals can apply to remain in the UK post-Brexit under the EU Settlement Scheme.

Appendix EU of the Immigration Rules

The EU Settlement Scheme (Scheme) operates in the immigration rules and can be used by EU, EEA, EFTA and Swiss nationals to register to remain in the UK after Brexit.

The Scheme opened fully to applicants on 30 March 2019.

EU citizens and their family members who have resided in the UK for a continuous period of at least five years are eligible for indefinite leave to remain in the UK (ILR) under the Scheme (known as “settled status”). EU citizens and their family members who have resided in the UK for a period of less than five years can apply for leave to remain (known as “pre-settled status”) allowing them to complete the five-year continuous residence period and become eligible for ILR.

During the transition period, EU citizens and their family members retain free movement rights while being eligible to apply for leave under the EU Settlement Scheme. Both regimes ran concurrently.

EU citizens residing in the UK must register by 30 June 2021.

Family Permit using the Immigration Rules

In April 2019, family members could apply for a Family Permit to join the EU citizen in the UK.  This enables non-EU nationals to apply for a family permit under the Scheme and facilitate their entry to the UK (non-EU nationals can also continue to apply for family permits under EU Law).

Immigration options for EU citizens and their family members in the UK by 31 December 2020

For those EEA/Swiss nationals in the UK who have residence status under EU law, they must swap their residence cards to the EU Settlement Scheme status or apply for naturalisation as a British Citizen.

Requirements for Settled Status or Pre-Settled Status

The applicant must:

  • Be an EEA/Swiss nationals or family member.
  • Meet the residence (eligibility) requirements.
  • Meet the suitability requirements.
  • Make a valid application.

Family members who join EU citizens by 31 December 2020

Family members (spouse/civil partner, durable partner (with EEA document), children under 21, dependent parents/grandparents, other dependant relatives with EEA document), of EU citizens who join the EU citizens in the UK before the end of the transition period may apply to the Scheme.

Some family members retain their rights of residence even after their relationship with the EU citizen has ended, including in cases of:

  • Divorce/dissolution provided the union lasted for three years prior to termination the couple resided in the UK for at least one of the three years.
  • Death of the EU citizen provided the family member lived with that partner for at least one year immediately before the death.

Others who can apply to the Scheme

Derivative rights holders

  • Non-EU national primary carers of EU national children
  • Non-EU national children of an EU national worker (or former EU national worker) where the child is in education in the UK

Zambrano carers

Non-EU national primary carers of British citizens have the right to enter and reside in the UK if the British national would otherwise be forced to leave the UK (known as a Zambrano right of residence).

Family members joining EU citizens after 31 December 2020

Family members of EU citizens who join the EU citizen in the UK from 1 January 2021 will also be eligible to apply to the Scheme, provided their family relationship with the EU citizen existed on or before 31 December 2020.

Family members of British citizens: Surinder Singh

The Surinder Singh route enables non-EU nationals family members of British citizens who have exercised their EU free movement rights in another EEA Member State or Switzerland to move to the UK on the basis of EU law, rather than having to comply with more onerous domestic immigration requirements. The rights of Surinder Singh family members are largely aligned with those of EU citizens, meaning they will be able to apply for settled status in the same way as family members of EU nationals under the EU Settlement Scheme.

Frontier workers

Frontier workers are EEA nationals who work but do not live in the UK.

Frontier workers who meet the residence requirement are eligible to apply to the Scheme. It is anticipated that this will be the most beneficial route to protect their rights after the transition period.

Residence (eligibility) requirement

The main eligibility requirement of the Scheme is the “continuous residence” requirement. EU citizens are not required to exercise, or to have exercised, Treaty rights (work, study, self-sufficient, self-employed) in the UK to be eligible for leave under the Scheme.

Continuous residence

Continuous residence generally requires a person not to be absent from the UK for more than six months in total in any 12-month period.

A single period of absence for an important reason of up to 12 months is permitted. Examples of important reasons are pregnancy, childbirth, serious illness, a period of study, vocational training or an overseas posting. Any period of compulsory military service is also permitted.

Five years continuous residence: ILR

To be granted settled status (ILR) under the Scheme, the applicant must have completed a continuous period of residence of at least five years in the UK.

Some exceptions apply to the five years including:

  • EU citizens and their family members who acquire permanent residence after three years due to retirement or incapacity to work.
  • Family members of EU citizens who acquire permanent residence after two years due to the EU citizen’s death.
  • Children (under 21 years of age) of parents eligible for ILR under the Scheme.

Less than five years continuous residence: Leave to remain

Those who have not achieved five years residence in the UK, will be eligible for “pre-settled status” (leave to remain). This will be granted for a period of five years to enable them to reside in the UK until they are eligible for settled status (ILR) under the Scheme.

The guidance suggests that leave to remain under the Scheme will expire unless an ILR application is granted after five years’ continuous residence. Where a person with leave to remain under the Scheme breaks their continuity of residence (for example, by being absent from the UK for more than six months in a 12-month period without an important reason), they would not be eligible for (settled status) ILR on that basis.

Suitability requirement

There are mandatory and discretionary grounds for refusal. An application will be refused if the applicant has deportation/exclusion orders. Any criminal conduct before the end of the transition period will be assessed in accordance with EU Law.

Under EU law, the right to free movement can be lost and EU citizens or their family members can be excluded from the UK where the Home Office is satisfied that a person is a threat to public policy, public security or public health. However, the threshold to justify such measures is very high and previous criminal convictions may not by themselves be a sufficient justification. The test is forward looking. To justify exclusion, the person must be a future threat and past behaviour is only relevant if and to the extent that it provides strong evidence of the risk of a future threat to the UK. Measures to exclude an EEA national from the UK must also be proportionate.

Applications may also be refused with an applicant excluded from the UK on grounds of misrepresentation or non-exercise or misuse of free movement rights, provided the exclusion decision would be proportionate.

Administrative formalities

EU citizens and their family members wishing to remain in the UK after 31 December 2020 will be required to make an application under the Scheme even if they already hold a document issued under EU law.  All EU citizens and their family members in the UK must apply for a status document before 30 June 2021.

Most applications under the Scheme are relatively straight forward and completed in a number of simple steps:

A) Validating ID and biometrics 

EU nationals with biometric passport or ID cards and non-EU nationals who hold a biometric residence card (BRC) can verify their ID upload a photograph using the EU Exit: ID Document check application. The app is available on android and Apple devices with near field communication (NFC).

Applicants without access to the app may attend a document scanning location to have their biometric ID document scanned. For a list of document scanning locations, see GOV.UK: EU Settlement Scheme: ID document scanner locations.

EU nationals who do not wish to apply via the app or are unable to as they do not hold a biometric ID document, can submit their original documentation by post.

Non-EU nationals who do not hold a BRC must attend a UK Visas and Citizenship Service (UKVCAS) centre to submit their biometric data (facial photograph and fingerprints). They should first complete the online application form and upon submission shall be directed to book their biometric appointment.

B) Online application form

The online form is available through the ‘EU Exit: ID Document Check’ app on:

  • an Android phone
  • an iPhone 7 or above

C) Automated data checks

Automated checks are carried out with Her Majesty’s Revenue and Customs (HMRC) and the Department for Work and Pensions (DWP) on work and benefits records to confirm an applicant’s residence in the UK. Applicants will be asked to provide their National Insurance number so that these checks can be conducted. Applicants can choose not to provide their National Insurance number and instead demonstrate their residence using their own documentary evidence if they wish.

Those who hold a document certifying permanent residence or ILR will not usually need to provide further evidence to prove their residence.

Where information cannot be verified automatically, applicants will be informed of the periods of UK residence which they need to substantiate with additional supporting evidence. Applicants may then submit a photocopy, photograph or scanned digital image of any required supporting evidence. Applicants will not need to provide evidence of their entire residence in the UK, only for the period that proves they are eligible for settled or pre-settled status. Applicants will be able to pause their application and save it “in draft” if they need to gather additional evidence prior to concluding their submission.

D) Uploading of evidence (if required)

Residence evidence

 Documents submitted as evidence of residence will cover the period indicated on the documents.

An example of the types of documents to submit for longer periods of residence as set out below:

  • An annual bank statement or an account summary covering a 12-month period, showing six months of activity
  • Annual business accounts of a self-employed person
  • A letter from an employer, confirming the duration of a period of UK-based employment
  • A P60 for a 12-month period
  • A P45 confirming the duration of a period of employment which has ceased
  • A letter from an organisation in the UK confirming attendance at a course
  • A letter from a registered care home confirming the period of residence in the home.
  • An invoice from a school, college or university fees for education in the UK, which includes the name of the student
  • Documentation issued by the student finance or the Student Loans Company that shows a UK address
  • A residential mortgage statement or tenancy agreement
  • A council tax bill

Alternative evidence of residence for shorter periods

  • Bank statement
  • Payslip for a UK-based job.
  • Invoice for work physically done in the UK.
  • Utility bill
  • Letter from a GP/NHS
  • Letter from DWP
  • Other domestic bills

Unacceptable evidence includes:

  • Character references or testimonials from family and friends
  • Photos and videos
  • Greetings cards or postcards sent or received.
  • A personal scrapbook or similar

Evidence of family relationship

Non-EU national family members must also upload evidence of their family relationship with the EU citizen and show that the EU citizen is eligible for status under the scheme.  These documents can include, marriage certificates or civil partnership certificates, birth certificates etc…

E) Automated criminality and security checks

The government will conduct checks against UK criminality and security databases and conduct overseas criminal record checks (if appropriate). If the checks reveal that an applicant may not meet the suitability requirements for the scheme an applicant may be issued with a deportation or expulsion order and their application subsequently refused.

Practical issues with the application process for non-EU family members

  • The process is significantly lengthier and more cumbersome.
  • Required to attend a biometrics appointment at one of the UKVCAS centres, and usually required to pay an appointment fee (usually ranging between £50 and £250).
  • The “EU Exit: ID Document Check” application can only be downloaded by applicants in the EEA (including the UK) or Switzerland. This is problematic for applicants based outside those states.
  • Applicants in certain categories (for example, those who have a derivative right of residence or where the EU national is a dual EU/UK national)) are required to use a paper application form.

Application fee for settled status or pre-settled status

On 21 January 2019, the government announced that there would be no fee for applications submitted under the EU Settlement Scheme after 29 March 2019. Applicants who applied before that time had to pay an application fee (£65 for those aged 16 or over and £32.50 for children under 16) but had their fee reimbursed automatically.

Where to apply

Since 9 April 2019, EU citizens have been able to apply from inside or outside the UK, based on their previous residence in the UK.

Processing times

The Government publishes current processing times on its website.  However, usually applications where checks are validated will be considered within 5 working days.  Many applications are taking around 1 month or longer if they are made using a paper application form.

How will an applicant know if they have been successful?

If successful, the applicant will be sent an email confirming their status and the date it was granted with a unique reference number rather than a physical document.

Non-EU nationals will also have their status confirmed by email and will receive a BRC if they do not already hold one issued under the EEA Regulations.

Challenging a decision

If an application was refused before 31 December 2020 the applicant can submit a fresh application before 30 June 2021.

Applicants will be able to request an administrative review within 28 days of receipt of a decision (seven days where the applicant is in detention) if the application was:

  • Refused on eligibility grounds.
  • Granted pre settled status instead of settled status

The fee for administrative review will be £80. This will be refunded if the reviewer decides that the original decision was incorrect, based on the information available to the original decision-maker.

If an application were refused on suitability grounds, there is no recourse other than Judicial Review (JR) which is to overturn the decision of a government body.  It is more expensive and much more limited in scope than an appeal or administrative review.

The JR reviewer will be able to consider any information and evidence submitted with the application for the review, including information and evidence that was not before the original decision-maker, and request additional information from the applicant. The application can be submitted from outside or inside the UK, and it will not be considered withdrawn if an applicant leaves the UK while the administrative review is pending.

Valid application

An application is valid if:

  • It has been made in the UK in accordance with the application process.
  • Proof of identity and nationality has been provided.
  • Biometrics (a facial photograph (and fingerprints for non-EU nationals)) have been given.
  • Where an applicant applies from outside the UK, the required proof of entitlement to apply from outside the UK.

Invalid applications will be rejected.

Losing ILR

Those who hold ILR under the Scheme can be absent from the UK for any reason for a period of five consecutive years without losing their status.

British citizenship

Those granted ILR under the Scheme may apply for naturalisation as a British citizen twelve months after the date leave was granted under the Scheme or immediately if married to or in a civil partnership with a British citizen.

Those who have a permanent residence document and have held this status for at least one year can apply to naturalise immediately on being granted a document certifying permanent residence under EU Law.

Children

A child born in the UK to an EU national with settled status will automatically be a British citizen.

A child born in the UK to an EU national parent with pre-settled status will be eligible for pre-settled status.

Rights of an EU national with settled or pre-settled status

  • Work in the UK
  • Use the NHS
  • Enrol in education or continue studying
  • Access public funds such as benefits and pensions
  • Travel in and out of the UK

At a glance – the differences between the free movement and settled status regimes.

Comparison: free movement vs. EU Settlement Scheme

 Free movementEU Settlement Scheme
Eligibility requirement: EU citizensEligibility requires EU citizens to exercise a Treaty right by being a:

• Worker.
• Self-employed person.
• Self-sufficient person (plus CSI).
• Student (plus CSI).
For EU citizens, eligibility requires “residence” in the UK by 31 December 2020. There is no requirement to exercise, or have exercised, Treaty rights.
ApplicationNot mandatory in most cases as rights exist automatically.Required in all cases.
Effective from dateRights of EU citizens and their direct family members are automatically acquired. Note: there are family members (such as durable partners) who need to be granted a Residence Card before they hold the right.Status conferred on the date of grant of application.
Settlement: type and basisPermanent residence acquired under Directive 2004/38 and the EEA Regulations.Settled status (ILR) granted under Appendix EU of the Immigration Rules.
Settlement: childrenChildren of EU citizens (or of their spouses or civil partners) require five years’ continuous residence to acquire permanent residence.Children (under 21) of EU citizens (or of their spouses or civil partners) are eligible for ILR under Appendix EU at the same time as their parents.

Holders of settled and pre-settled status

Employers of EU citizens will be able to rely on the EEA passport or ID card to confirm the person’s right to work in the UK until 30 June 2021, provided the employee was in employment before 31 December 2020.

Holders of settled and pre-settled status will not get a paper document to prove their right to work in the UK.  Instead, their immigration status will be recorded electronically and will be accessible as soon as a decision has been made on their application. The online profile can then be used to prove their right to work in the UK to employers

The migrant’s online profile can be accessed by entering the number of the identity document used in their application for settled or pre-settled status and their date of birth. A single-use code will then be sent to the migrant’s mobile phone number or email address that they provided in their application which they will need to enter online to access their profile. Migrant’s will not need a username or password to view their profile.

Migrants will be able to go their online profile to:

  • View their status or update their details if their contact details or identity document changes.

We recommend that migrants carry a printout of their status with their passport for travel after from 1 January 2021.