What are the key points from the Scheme?
EU citizens and their family members who are residing in the UK will need to make an application under the Scheme in order to continue to reside lawfully in the UK. The key points are as follows:
- EU citizens and their family members (spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) who by 31 December 2020 have been continuously resident in the UK for five years will be eligible to apply for settled status, enabling them to stay indefinitely.
- EU citizens and the family members who arrive in the UK by 31 December 2020, but who will not have been continuously resident for five years, will be eligible for pre-settled status, enabling them to remain in the UK until they reach the five year threshold. They can then apply for settled status where they have remained continuously resident in the UK.
- Individuals with settled or pre-settled status will have access to healthcare, pension, public services and social security entitlements essentially on the same basis as is the case now.
- Close family members living overseas will be able to join an EU citizen resident in the UK after 31 December 2020, provided the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK.
In general, a person will have been continuously resident if they have not been absent from the UK for more than six months in total in any 12 month period. There is no restriction on the number of absences permitted, provided that the total period of absence does not exceed six months in any 12 month period.
How will the application process work?
Concerns have been expressed about the documentation that EU citizens may be required to provide in support of applications, particularly following the Windrush scandal, where people who had been resident in the UK for several decades had in some cases been unable to evidence their status as British nationals and faced deportation.
The Scheme has been designed to be streamlined and user friendly with fast-track processing, using an online application portal and optional mobile phone apps (a Home Office first). Reassurance has also been given that the default position will be to grant applications, rather than to look for reasons to refuse. It is likely, however, that between three and four million applications will need to be processed and Home Secretary Sajid Javid has acknowledged that the task is of a scale not previously undertaken by the Home Office. So it remains to be seen how well-oiled the Scheme will be in practice.
There will be a phased roll-out from late 2018 with the Scheme open fully by 30 March 2019. Applicants will be required to meet three core criteria:
- Identity – proof of identity, usually through a passport or national identity card.
- Eligibility – establishing residence in the UK and, if relevant, family relationships. Cross departmental Government checks will be conducted using data held by HMRC and DWP, meaning that the additional information that will need to be provided by many applicants will be limited (eg, to fill in gaps where there is no Government data). Appendix A of the Statement of Intent lists examples of the sorts of additional documents which may be required.
- Suitability – a security and criminal record check.
Individuals who have obtained permanent residence documents will be able to ‘swap’ these documents for settled status documents in a streamlined process with no charge, subject only to a criminality check and confirmation that their permanent residence status has not lapsed.
Applications must be lodged by 30 June 2021 and the cost will be £65 per person, or £32.50 for children under the age of 16.
What should EU citizens and their family members do now?
The further details published by the Government will provide a degree of reassurance and comfort for EU nationals. They are also more comprehensive than the information that has been made available to British citizens residing in EU countries.
However, uncertainty remains about the outcome of the Brexit negotiations and the UK and the EU are operating on the basis that ‘nothing is agreed until everything is agreed’. EU nationals should therefore consider the following:
- Documents and absences – EU nationals should start to collate documents evidencing their continuous residence in the UK and, where appropriate, family relationships or dependency. It would also be prudent for EU nationals to retain a record of their absences from the UK and, where practicable, ensure they do not break continuous residence by reason of their absences.
- Permanent residence – applying for permanent residence documents may be sensible, notwithstanding that permanent resident status will not be recognised by the UK post-Brexit. Individuals who hold permanent residence documents will benefit from a streamlined application for settled status. Further, under current rules EU nationals must hold permanent residence documents in order to be eligible to apply for British citizenship. So EU nationals who wish to apply for British citizenship now, or who want to be in a position to do so in future with minimal delay (eg, depending on the progress of the Brexit negotiations), should consider applying for permanent residence documents now.
- British citizenship – obtaining British citizenship may be the best way for an EU national to secure their right to live and work in the UK on a long-term basis with minimal restrictions. But very careful consideration should be given to the full implications, including the impact on home nationality status (not all EU countries permit dual nationality), the potential loss of EU free movement rights, access to social entitlements in the ‘home’ country, and the impact on family members.
How we can help
We have worked with a large number of employers to provide advice and support to EU nationals including running application workshops, briefing sessions, advice surgeries, and assisting in the preparation of applications.