The Government has now published its statement of intent on the proposed EU Settlement Scheme which will allow EU citizens living in the UK to register and formalise their rights to remain in the UK. Whilst the guidance is subject to Parliament’s approval, it is a useful guide to the intended approach to formalise the rights of the 3.2 million of EU citizens currently living and working in the UK.
Who will be eligible to apply
All EU citizens currently living in the UK and their family members resident in the UK and those that come to the UK prior to the cut off date of 31 December 2020 will be entitled to apply for settlement under the scheme. There will be two options depending on the length of time the individual has been in the UK when they apply:
- Settled status – those that have lived in the UK continuously for 5 years will be able to apply for settled status immediately, enabling them to stay indefinitely.
- Pre-Settled status – those will less than 5 years’ continuous residence will be able to apply for pre-settled status, which they can then convert to settled status once they reach the five year point.
Individuals with settled status or pre-settled status will continue to have the same access as currently to healthcare, pensions and other benefits. Close family members living overseas will still be able to come to the UK after the end of the implementation period, where the relationship existed on 31 December 2020.
The application process
The Government has promised a “streamlined and user-friendly” application system which will draw on existing government data to minimise the burden on individuals to prove their residence. This will be an online application. There will be three stages:
- Identity – individuals will be required to verify their identity and nationality, generally via their passport or national identity card. Positively the proposal includes an option to confirm relevant details remotely via a smartphone app to minimise the need for formal identity documents to be sent by post.
- Eligibility – Individuals will need to demonstrate that they are a resident in the UK and their length of residence.
- Suitability – to identify any serious or persistent criminals or those that pose a security check, checks will be conducted against UK criminality and security databases and overseas criminal records as appropriate.
For the majority of EU citizens, the system will be able to automatically check employment and benefits records held by HMRC and the Department for Work and Pensions for proof of residence, limiting the amount of documentation they are required to submit. There will also be the opportunity to upload scans or copies rather than sending hard copies. In contrast to the current requirements to apply for permanent residence, which require individuals to show they meet all the requirements of current free movement rules, for example to have comprehensive sickness insurance, or details how they have exercised specific rights, like the right to work, the main requirement will be residence in the UK.
Importantly, the government has emphasised their commitment to help with applications and to look for reasons to grant, not to refuse, applications. Caseworkers will be able to exercise discretion in favour of applicants and there will be a principle of evidential flexibility. If an individual submits an application which is missing any of the components to be valid, it will not be rejected without the person being contacted or promoted by the Home Office and given a reasonable opportunity to provide what is needed.
This is a marked contrast to the normal immigration system, which can be confusing and penalise applicants for lack of exact documentation or simple errors in the information provided. Applications will cost £65, or £32.50 for children. The process will be particularly straightforward for citizens that already have permanent residence, allowing them to swap for settled status free of charge. Evidence of status will be given in digital form with no physical documents being issued to EU Citizens. Non-EU Citizen family members will be issued with a biometric residence document where they do not already have one.
The scheme will start to open from late this year, with the scheme fully open by 30 March 2019 and a final closing date of 30 June 2021.
What should EU citizens do now?
There will be no change to the current rights under EU law until 31 December 2020, and the closing date of 30 June 2021 means that there is no need for EU citizens currently in the UK to take action now. Further details of the scheme are expected over the summer.
Whilst EU citizens can continue to apply for permanent residence in the meantime, the promised new process if implemented will make applications for settled status much simpler than current applications for permanent residence. Current delays in processing applications for permanent residence mean that for now, many EU citizens will be better to wait until the new system opens. Additional considerations may apply for family members of EU citizens that are already living with or wish to join family members in the UK and therefore specific advice should be sought in this situation.
In the meantime, EU Citizens should ensure that they keep important documents confirming their residence in the UK, such as P60s, annual business accounts, bank statements and domestic bills and evidence of attending training institutions to ensure that if necessary, they can prove their residence in the UK. They should also ensure that they continue to satisfy the residency requirements, which generally mean they should not be absent from the UK for more than six months in any twelve month period.