The Home Office’s full roll out of the settled status scheme has now begun for over 3.5 million EU citizens living in the UK, as well as all their family members.
Brexit means they will have to apply to the scheme to stay in the UK, or risk being stripped of their rights.
The Home Office insist the process will be smooth, former Home Secretary Amber Rudd insisting it would be “as easy as setting up an online account at [fashion outlet] LK Bennett.”
Find out if that’s true as immigration expert Vanessa Ganguin of Ganguin Samartin Solicitors, explains what settled status means for EU citizens post-Brexit, and how to apply for settled status to continue to be able to live, work and access services legally in the UK.
Are EU nationals facing a possible Windrush 2.0?
Let’s abbreviate ‘EU, EEA and Swiss nationals’ to ‘EU nationals’ for the purpose of this article, so we include citzens of Iceland, Liechtenstein, Norway and Switzerland.
Theresa May insists that EU nationals who apply for settled status scheme will lose no rights after Brexit.
But despite the Prime Minister’s assurances, there have been warnings that vulnerable people that might find it difficult to negotiate applying may end up in that very situation.
Campaign group The 3 Million which represents EU nationals living in the UK has warned the settled status scheme is a “ticking time-bomb” which could result in people facing deportation or costly court cases if they miss the deadline to apply through no fault of their own.
And Parliament’s influential Human Rights Committee urged for flexibility for applicants, warning people who have “lived and worked in the UK their whole lives” could face a rerun of the Windrush scandal if they miss the deadline to apply.
When is the deadline to apply for settled status?
If Britain leaves the EU with a deal, the deadline for applying will be 30 June 2021. If we leave without a deal it will be 31 December 2020.
Will EU nationals be able to stay in UK after Brexit if there is a deal?
Yes – provided they were living in the UK before the end of the transitional period (31 December 2020), with some slightly more generous provisions for family members, especially children.
Can EU nationals stay in the UK if there is a no-deal Brexit?
The EU settlement scheme will also apply in the event of no deal – although only those living in the UK before the Brexit departure date (which could be as early as 12 April 2019 if Theresa May’s deal still does not command a majority) will be eligible to apply (again with some slightly more generous provisions for family members).
So how will EU nationals and their family members come to the UK after we leave the EU in a no-deal scenario?
The Government plans to implement the Immigration Bill and end free movement from 12 April 2019 in the event of a no-deal Brexit.
This means that for the most part, EU nationals and their family members who come to the UK after we leave will require immigration permission to enter the UK.
However, the Government has stated that the new immigration rules, as set out in the White Paper will take some time to ‘implement’. The Home Office has announced it will implement the new ‘European Temporary Leave to Remain in the UK’ subject to parliamentary approval, during this interim period, which will enable EU nationals to apply for up to three years’ leave to remain in the UK and a corresponding family permit system for family members.
Who should apply for settled status?
EU nationals and their family members (spouse, civil partner, unmarried partner, child or other dependent relatives) will need to apply for settled status – even if they already have the right of permanent residence.
EU nationals who are married to British citizens will also need to apply.
Non-EU nationals who were previously a family member of an EU national can also apply in some circumstances. Non-EU nationals may also be eligible where they previously lived in an EU country with a British family member (again, in some circumstances). There are also some options for children and parents in more obscure circumstances.
Do people from Ireland need to apply for settled status?
Irish citizens enjoy a special status in the UK that’s separate to the EU so they will not need to apply, but the Home Office has said ‘they may do so if they wish.’
What if I’m from Norway, Liechtenstein, Iceland or Switzerland?
The EU Settlement Scheme will also apply to EEA (Norway, Liechenstein and Iceland) and Swiss nationals and so they too will be required to apply for settled status.
How long do you need to live in the UK to apply for settled status?
To get settled status people must live five years continuously before 31 December 2020 (deal scenario) or exit day (no-deal scenario).
The Home Office will carry out automated checks of data held by Her Majesty Revenue and Customs (HMRC) and the Department for Work and Pensions. Those checks should show evidence of employment and/or benefits to indicate residence.
If at the time of the application the applicant has not lived in the UK for five years or HMRC does not hold records for a five-year period, the applicant will be able to opt to either submit documents to evidence residence or apply for pre-settled status which is granted for five years.
During that five-year period the applicant can apply for settled status as soon as they have lived in the UK for five continuous years.
How much does a settled status Application cost?
Applications are free of charge for all. The Home Secretary was forced to scrap charges in January after dismay greeted the news that there would be a fee. Those who have paid should receive a refund.
Where do you apply for settled status?
The easiest way is to download the EU Exit: ID Document Check app on an Android smartphone – but… it’s not available on iPhones!
Non-EU national family members who do not already have a Biometric Residence Permit will have to apply via an online application process.
If applicants can’t find someone with an Android mobile that they can use, there are centres that can help check and scan documents so that applications can be made online and by post.
Following complaints that there was only one centre in Scotland and in parts of Britain the nearest was hundreds of miles away, the Government promised to increase centres from 13 to 50.
The Home Office has published a list of locations, but warns that some may charge for the service.
Some centres may be help with the process for those without access to a computer or lacking skills to use one, but it is unclear which. Citizens Advice Bureaus are reporting people asking for help with applications.
How long does it take to complete a settled status application?
Anything between 20 and 45 minutes.
What kinds of questions do they ask?
All applicants will have to evidence three things.
First, they will be asked to prove their identity with a passport or ID card. Applicants are asked to scan their passport using the app and then to scan their face and take a photo of themselves. In many cases this can be scanned and uploaded.
They will also be asked to declare any criminal convictions.
Thirdly the Home Office will check employment and benefits data to confirm proof of residence.
How long does it take to get a decision on settled status?
Most applications are decided in less than a week. Straightforward applications, for example where an applicant already has a document certifying permanent residence, can take as little as one hour to be decided.
However, those who are asked to submit additional documents (for example evidencing residence) should expect to wait longer.
Will this mean people have ‘ID cards’?
No. Evidence of settled status is given to EU citizens in digital form – no physical document is issued.
How long can people with settled status leave the UK for?
EU nationals with settled status will be able to leave for up to five years without losing their status. On the other hand those with pre-settled status will break the continuity of residence if they leave the UK for more than six months in any 12 months.
Will people with pre-settled status and settled status all be able to use the NHS?
Yes they will have access to public services such as healthcare, schools and pensions.
Can people with a criminal record get settled status?
Each case is considered individually, but those with a history of persistent, serious offending may be refused and subject to deportation.
Do you still need to apply for settled status if you have permanent residence?
Yes – unless people are naturalised as a British citizen before the deadlines (see below) in which there is no need to apply for settled status.
Is settled status necessary for citizenship?
To be able to apply to naturalise as British, applicants will need to be able to evidence there is no time limit on how long they can stay in the UK.
Settled status is an immigration status with no time limit and so would be one way of meeting this requirement. Another would be if the applicant already holds a document confirming permanent residence, in which case you can apply for citizenship.
Should EU nationals still apply for a document certifying permanent residence?
There may be an advantage to doing this now if British citizenship is the aim, as settled status will not be backdated and so applicants will still need to wait for 12 months before applying to naturalise as British.
EU nationals can still do so as the UK leaves the EU, and in the event of a deal, until the end of the transitional period on 31 December 2020.
Under the current Regulations the Home Office will confirm when the individual acquired a permanent right of residence (depending on how long they have been economically active in the UK under EEA Regulations). If over six years, it is possible for an applicant to apply to naturalise (become a British citizen) after settled status is granted.
What happens if a settled status application is turned down?
Where a valid application is refused, there will be the right to request an administrative review. Those refused status under the scheme can make a new application at any point before the end of June 2021 (or earlier in a no-deal scenario).
In addition, the Government has stated an intention to create legislation giving a statutory right of appeal to those refused.
The worrying question is what happens when an individual fails the HMRC checks. The Home Office does not retain the data, and so arguably upon refusal the Home Office decision-making becomes opaque as there is no way of finding out why you have been turned down.
In such a situation, if an applicant asks for the reasons as to why they failed the checks, the Home Office will be unable to provide an answer. And that may turn out to be a worry for some of the millions forced by Brexit to make these applications.
Britain/EU immigration border control image (c) Jim Larrison (CC BY 2.0)