Settlement scheme rights, processes and limitations explained
Don’t settle for less – the UK’s settlement scheme explained by Samar Shams, Head of Immigration at Downs Solicitors.
The government has proposed a settlement scheme for EU nationals and their family members, which will open fully from 30 March 2019. The settlement scheme provides for rights for EU nationals and their family members under UK immigration rules; the scheme is distinct from the EU-based rights from which they currently benefit.
Dates and deadlines
The settlement scheme will be introduced in phases. It opened on 28 August 2018 to applicants from selected hospitals and universities close to Liverpool, where the Home Office processes the applications. Subject to the outcome of ongoing negotiations, the UK proposes to extend the settlement scheme to EEA and Swiss citizens.
Those to whom the scheme applies are required to make their applications by 30 June 2021. Requiring an entire category of legal migrants to register in this way to avoid becoming illegal is unprecedented in the UK as far as we are aware. Generally, the settlement scheme applies to EU nationals and their family members who are in or come to the UK before 31 December 2020. Certain family members will be able to register beyond that date. People will also be allowed to register after the 30 June 2021 deadline, where there are reasonable grounds for not respecting the deadline.
The government published a statement of intent in June 2018 which confirms that EU nationals and some family members arriving before the end of the transition or ‘implementation period’, which runs from 30 March 2019 to 31 December 2020, will continue to benefit from the most of the EU regulations currently in force: They will have a right to enter and an initial right to reside for three months; EU nationals will have the right to work, study, be self-employed or be self-sufficient; EU nationals’ family members will have the rights to reside and to work; EU nationals and their family members will have a right of permanent residence after 5 years.
EU nationals and most of their family members arriving in the UK after the end of the implementation period, i.e. from 1 January 2021, will be subject to the new immigration framework about which the government has published very little to date. The Migration Advisory Committee published its final report on EEA migration on 18 September 2018, making recommendations for the immigration framework to be implemented from 1 January 2021.
What can we apply for under the scheme?
EU nationals and their family members who hold documentation of permanent residence or have been resident in the UK for at least 5 years may be eligible for settled status, or indefinite leave to remain. Those who have not been here for 5 years may be eligible for pre-settled status, and for settled status once they have accrued 5 years’ residence.
Both pre-settled and settled individuals will be able to work or study in the UK, use the NHS and access benefits. Settled individuals may be eligible to apply for British citizenship after holding settled status for one year. Children born in the UK to settled migrants are British citizens; those born to pre-settled migrants are not. Settled status can be lost if an individual is absent from the UK for 5 years. Pre-settled status can be lost after 2 years’ absence.
The application process
The application process will be available online and accessible via mobile phones. It will consist of the following steps:
1 - Providing personal details such as name, address, passport number and/or national insurance number.
2 - Verification of identity using a passport, ID card, or biometric residence card or biometric residence permit. EU nationals will be able to use an app to scan their passports with an Android (but not an Apple) phone or tablet. EU nationals may also be able to attend a location to use the app. Non-EU national family members will have to send their ID documents in by post. Applicants will be required to upload a recent digital photograph.
3 - Proving residence: Applicants can give the Home Office permission to check employment and benefit information electronically with other government departments to confirm residence. For those who do not wish to give permission, or whose government-held data is insufficient, scanned copies of residence documents will be required. Examples of acceptable documentation include bank statements, annual business accounts of a self-employed person, and council tax bills. The scheme will not seek to verify that applicants have been exercising treaty rights by working, being self-employed etc... Only residence will be verified. Documentation of comprehensive sickness insurance will not be required for settlement applications.
4 - Applicants will also have to declare that they have no serious criminal convictions.
5 - Payment.
Documentation required of family members will be those that establish the family relationship, e.g. birth certificate and marriage certificate and proof of UK residence of the EU national. These can be scanned and submitted via the online application form. Unmarried partners will have to provide documentation of their EEA rights, e.g. a Registration Certificate, and unless they have permanent residence, they will also need to provide evidence that the relationship is subsisting; examples of such evidence are not given in the rules, but official correspondence addressed to the couple jointly at the same address is an example of documentation that is acceptable in other, similar UK immigration contexts. The Home Office might specify required evidence in guidance as the scheme rolls out.
Non-EU family members will also have to attend an application centre to provide biometric data, in the form of a digital photograph and fingerscans, if they do not already have a Biometric Residence Card.
Applications for pre-settled status and settled status will cost £65 for adults and £32.50 for children. Where someone applies for pre-settled status and pays the relevant fee, their subsequent application for settled status will be free after Brexit. For those who already have documentation of Permanent Residence, the application for settled status will be free. The statement of intent indicates that applicants will have to permanently surrender their permanent residence document when applying for settled status.
Applications made by families at the same time will be processed together.
Most approved applicants will not receive a physical document. Rather, they will receive proof of their status through an online service. Only non-EU national family members will receive a physical document, in the form of a Biometric Residence Permit card, if they do not already have one. Under the Draft Withdrawal Agreement, a document confirming that an application has been made, called a certificate of application for residence status, may be issued when an application is made. This would help third-country national family members evidence their right to reside and work in the UK. The UK government has not confirmed whether it will issue certificates of application for residence status.
To be eligible for settled status, those who do not already have a documented right of permanent residence should not have absences totalling more than 6 months in a 12-month period; one absence of up to 12 months is permitted for a good reason such as work or maternity/childbirth. Once acquired, the right of permanent residence will be lost after a period of absence from the UK of five consecutive years.
The Home Office proposes that applicants will have access to an administrative review process and, from 30 March 2019, to an appeal process. Applicants can also reapply at any time before the registration deadline. The UK and the EU still disagree on the jurisdiction of the Court of Justice of the European Union.
Apply for documentation of EU rights now
The Government has maintained that EU nationals and their family members need not apply for documentation under the current regulations, because the settlement scheme applications will be so simple. However, there are many reasons why EU nationals and their family members might apply for documentation now, as follows:
1 - Those who have permanent residence rights and would like to apply for citizenship would do best to proceed with applications now, as they will need to evidence having acquired permanent residence at least one year before applying for citizenship. Only EU nationals who are married to British Citizens will be eligible to apply for citizenship directly upon obtaining settled status.
2 - Obtaining a permanent residence document now will facilitate the application for settled status later.
3 - Obtaining documentation now confirms EU rights, whilst documentation obtained under the settled status scheme confers UK-based status. This is significant for those EU nationals wishing to move to another EU state that is not their home state and for questions of recourse to European courts and appeal rights.
4 - Regardless of the information provided today by the Home Office, we do not know how well the settled status scheme application processes will work. The Home Office does not have a great track record with digital processes.
5 - UK pre-settled status and settled status holders will be at the mercy of negotiators and UK lawmakers, for whom ‘nothing is decided until everything is decided.’
Students and self-sufficient people who are subject to the requirements to hold Comprehensive Sickness Insurance and do not have it might decide to wait for the settlement scheme process to open to apply for documentation, and Irish nationals do not have much incentive to apply for documentation of EU-based rights. For other EU nationals, the safest approach is to apply for documentation of EU rights now as well as applying for documentation of UK rights when the UK settlement scheme is fully open.