European Union citizens’ rights post-Brexit

Since the result of the European Union (EU) referendum, one of the biggest concerns for European Economic Area (EEA) and Swiss citizens (collectively referred to here as EU nationals) and businesses that employ them, is what their status will be post-Brexit.

Summary

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 during a transition period which will immediately follow the date that the UK leaves the EU and is due to end on 31 December 2020 at the earliest.

EU nationals living in the UK by the date of withdrawal (currently likely to be on 31 January 2020 but subject to change) will need to apply to the EU Settlement Scheme (the Scheme) if they wish to remain in the UK beyond 31 December 2020. Applications must be submitted by 31 December 2020, if the UK leaves the EU without a deal, or by 30 June 2021, if a deal is agreed.

In a no-deal Brexit, EU nationals who wish to enter the UK after the date of withdrawal to live, work and/or study will still be able to do so without restriction until 31 December 2020. A voluntary online registration scheme called European Temporary Leave to Remain (ETLR) will be rolled out which will allow EU nationals who enter the UK after the date the UK leaves the EU until the end of the transition period to apply for immigration permission valid for three years (more details below) which will enable them to continue to live, work and/or study in the UK for that period.

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, work and/or study will need to obtain immigration permission before they travel. Those wishing to visit the UK will simply be able travel to the UK on the basis of their passport and apply on arrival for entry as a visitor. When an ETLR holder’s immigration permission is about to expire, they will be able to switch to an immigration status under the new system, provided they satisfy the relevant requirements.

EU Settlement Scheme

EU nationals resident in the UK before the date of withdrawal (or before the end of the transition period if a deal is agreed) are/will be eligible to apply under the Scheme.

Successful applications under the Scheme will have one of two outcomes:

  1. 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.
  2. 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 an EU citizen in the UK after the UK leaves the EU, where the relationship existed on the date of withdrawal, 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 for their applications to be approved.

Continuous residence means that applicants 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 account. 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, schools, 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 continuous 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.

 

Application process

Applications can be made online or through a mobile phone app 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 the applicants 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. The results of this check 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 the applicant’s residence in the UK. Applicants can use the app to take a photo of the document showing name, address and dates and can upload it onto the application.

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 e-mail is sent to the applicant confirming their status. An online account is created which the applicant can access to see their immigration status and update 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

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 applications made under the Scheme because they require the applicant to show that they were exercising a Treaty Right (working, studying, self-sufficiency) throughout the five year qualifying period and, in some cases, that they held comprehensive sickness insurance.

Current DCPR holders can swap this document for settled status using the app or an online form and must do this by 31 December 2020.

 

Documents Certifying Permanent Residence 

 

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 applications made under the Scheme because they require the applicant to show that they were exercising a Treaty Right (working, studying, self-sufficiency) throughout the five year qualifying period and, in some cases, that they held comprehensive sickness insurance.

Current DCPR holders can swap this document for settled status using the app or an online form and must do this by 31 December 2020.

British citizenship/naturalisation

Applications for British citizenship can be made 12 months after the date on which applicants are granted settled status or were deemed to hold permanent residence under EU law.

Consequently, for those EU 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.

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, 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 different arrangements.

Until 31 December 2020, EU nationals will continue to be able to move to the UK to live, work and study without the need for a visa. Once they have arrived in the UK, EU nationals will, on a voluntary basis and free of charge, be able to register online for a new immigration status called European Temporary Leave to Remain (ETLR). Successful applicants will be granted a three year residence permit which will enable them to continue to live, work and study in the UK for that period. The current position is that this status cannot be extended so, when it expires, the ETLR holders will either need to leave the UK or switch into an appropriate category under the new immigration system, which is due to come into force from 1 January 2021. However, time spent in this category will accrue towards the qualifying period for indefinite leave to remain (also known as permanent residence or settlement), which is normally five years, so there is a strong incentive to apply.

Non-EU family members of EU nationals will be covered by the same provisions but must apply for the appropriate immigration permission before they travel to the UK.

Employer considerations

Until at least 31 December 2020, EU nationals will be able to continue to demonstrate their right to work by presenting their passport or a national ID card to a prospective employer. Employers will therefore still be able to establish their statutory defence against liability under the law on the prevention of illegal working by making signed and dated copies of these documents and keeping them on file.

From 1 January 2021, a new immigration system will be in place and any employer who hires any EU nationals after this date will need to obtain additional documentation from the EU national to demonstrate that the EU national has the right to work in the UK .

Conclusion

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.

While EU nationals currently in the UK have until 31 December 2020 to make their applications, we would advise that applications are made sooner rather than later to avoid the expected last minute surge.