European Union citizens’ rights post-Brexit
At the time of writing, it is still unclear when the UK will leave the EU and under what circumstances. However, the UK government has confirmed that in any eventuality EU nationals will be able to enter and remain in the UK to live and work freely until at least 31 December 2020.
Under the terms of the current draft withdrawal agreement, EU nationals living in the UK by 31 December 2020 will need to apply to the EU Settlement Scheme (Scheme) if they want to remain in the UK. Applications must be submitted by 30 June 2021.
In the event that the UK leaves without reaching a withdrawal agreement (no-deal Brexit), the Scheme will still go ahead but only EU nationals resident in the UK by the date of withdrawal will be eligible to apply. Applications must be submitted by 31 December 2020.
In a no-deal Brexit, new arrivals from the EU who enter after the date of withdrawal will still be able to do so without restriction until 31 December 2020. However, those who wish to remain in the UK for longer than three months will be required to register online for European Temporary Leave to Remain upon arrival.
From 1 January 2021, a new immigration system will be in force and new arrivals from the EU who enter the UK after this date to live and work will need a visa before they travel. Visitors will not require a visa.
EU Settlement Scheme
Successful applications under the Scheme will have one of two outcomes.
- Settled status (Indefinite Leave to Remain (ILR), also known as permanent residence or settlement) will be granted to those who have been resident for at least five continuous years. This means that they will be free to reside in the UK, to access public funds and services and eventually to apply for British citizenship.
- Pre-settled status will be granted to those who have been resident for less than five continuous years. This Limited Leave to Remain will be valid for five years and the applicant can apply for Settled Status once they reach the five year threshold.
Close family members (defined as spouses, civil partners and unmarried partners, dependent children and grandchildren) who are living with or join EU citizens after the UK leaves the EU, where the relationship existed on 31 December 2020 (or the date of withdrawal in the case of no deal), will also be able to apply for pre-settled or settled status.
Applicants will only be required to demonstrate their identity, their continuous residence in the UK and that they have not been involved in serious or persistent criminal behaviour.
Continuous residence means that they must not have been absent from the UK for more than six months in any continuous 12 month period. A single absence of up to 12 months is permitted for exceptional reasons such as pregnancy, childbirth, ill health, study or vocational training. Longer absences are permitted where someone is required to complete national military service overseas.
Successful applicants receive an e-mail with a unique application number confirming that they have been granted pre-settled/settled status plus access to an online record. Successful non-EU family members are issued with Biometric Residence Permits.
EU citizens with settled/pre-settled status will continue to have the same access as they currently do to the labour market, healthcare, pensions and other benefits.
Individuals who have been granted settled status will lose it if they are absent from the UK for more than five years.
Irish citizens are not required to apply for settled/pre-settled status. Irish citizens’ rights to reside in the UK are not affected by Brexit as they are governed by separate law which pre-dates the EU.
Applications can be made online or through an app (Android only) developed by the Home Office.
The app is easy to use and takes an applicant through the process step-by-step.
The app scans a passport’s biometric chip to confirm identity which means that applicants do not have to surrender their passports. After some basic personal questions, the Home Office will use National Insurance numbers, where an applicant has one, to check records held by HMRC and the Department of Work and Pensions to determine how long someone has been in the UK. Results are provided instantly.
Where an individual has made National Insurance contributions for the last five consecutive years, this should be sufficient to satisfy the Home Office that the individual meets the continuous residence requirements for settled status.
Where an EU national has no National Insurance number or if government records are incomplete, an opportunity will be given to provide supplementary evidence, for example, utility bills or property documents, demonstrating their residence in the UK. Through the app, applicants simply take a photo of the document showing name, address and dates.
It is important to note that applicants who do not use the mobile phone app will be required to send their passport to the Home Office or book an appointment at a support centre to have their identity verified. Where possible, we recommend using the app either on your own device or a borrowed one – the app stores no data.
After the application is submitted, a decision is generally made within a month and an email sent to the applicant confirming their status. An online record is created which the applicant can access to see their immigration status and updates details, for example a new passport.
Pre-Settled Status cannot be extended so, if a future application for Settled Status is not made or is not possible, applicants will need to obtain permission in the appropriate category under the immigration system in place at the time.
Documents Certifying Permanent Residence (DCPR)
Currently, under EU law, EU nationals who have lived in the UK for five continuous years and who have exercised an EU Treaty Right throughout this period are automatically deemed to hold permanent residence. They may apply for a Documents Certifying Permanent Residence (DCPR) in order to evidence this status, although this is not mandatory.
These applications are more complex than the Scheme because they require the applicant to show that they were exercising a Treaty Right (working, studying, self-sufficient) and, in some cases, held comprehensive sickness insurance.
Current DCPR holders can swap their document for Settled Status though the app or online form and must do this by 31 December 2020.
Applications for British citizenship can be made 12 months after the date on which applicants are granted settled status or after they were deemed to hold permanent residence under EU law.
Consequently, for those EEA nationals who have already spent more than five years in the UK and are looking to obtain British citizenship as soon as possible, they may wish to consider applying for a DCPR. This is because it is possible to backdate the DCPR to any date after the individual has spent five continuous years in the UK exercising one or more EU Treaty Rights. For example, if an individual has spent seven continuous years in the UK exercising an EU Treaty Right, when they apply for a DCPR, they can request that it be backdated by up to two years. Provided it is backdated by at least 12 months, as soon as the DCPR is issued, the EU national may immediately apply to naturalise as a British citizen.
It is important to note that many EU nationals are unaware that they are already British citizens. EU nationals who were born in the UK may be British by birth depending on the date of their birth and the status of their parents at the time of their birth.
No deal Brexit
In the event of a no deal Brexit, as mentioned above, only those EU nationals who have entered the UK by the date of withdrawal will be able to benefit from the terms of the Scheme. Those entering the UK between the date of withdrawal and 31 December 2020 will be subject to the following conditions.
- Those who wish to come to the UK for work, study or residence will be able to do so for three months without needing to take any action before or after they arrive.
- Those who wish to remain for longer than three months must apply online for European Temporary Leave to Remain from within the UK, which involves an ID and criminal record check.
- Successful applicants will be granted 36 months' temporary immigration permission to remain in the UK. This status cannot be extended and it will not lead to settlement, although it will provide full work and residence rights.
- When their European Temporary Leave to Remain expires, EU nationals will either need to leave the UK or switch into an appropriate visa category under the new immigration system which is due to come into force from 1 January 2021.
- Non-EU family members of EU nationals will be covered by the same provisions but must apply for their permits before they travel to the UK.
The UK government’s Scheme has, overall, been welcome news for EU migrants currently in the UK and those who arrive before the date of withdrawal. It is a simple, free process with a long application deadline and the feedback has been that those who have already applied have generally been granted the status they were expecting.
It is certainly the case that EU nationals currently in the UK do not need to take any immediate action as no changes will be made to the UK border until the UK leaves the EU. EU nationals will continue to be able to use the e-passport gates and will not be asked any questions by an immigration officer. However, we have already noticed that processing times have started to increase so we recommend that people do submit applications under the Scheme as soon as possible, particularly if they already satisfy the requirements for Settled Status.
Employers do not need to take any immediate action but many are encouraging their employees to make their applications sooner rather than later, but this will not become critical until the end of 2020.