Status of EEA citizens in the UK and settled status post-Brexit

On 7 November 2017, the UK Government published “Technical note: citizens’ rights, administrative procedures in the UK” (the Note) which sets out further details regarding its proposals on how European Economic Area (EEA) nationals who wish to remain in the UK post-Brexit will be able to evidence their right to stay.

The Note expands on the UK Government’s previous proposal made on 26 June 2017 in its policy paper, “Safeguarding the position of EU citizens in the UK and UK nationals living in the EU” (the First Proposal).

Set out below are details of the Note and how the proposals, if they come into force, will affect EEA nationals and their family members.

Background
Under EU law, EEA nationals who have been exercising an EU Treaty Right in the UK, such as employment, self employment, self-sufficiency, study or being a jobseeker (or a combination of these rights), for at least five continuous years and meet certain residence requirements, may be deemed to hold permanent residence status. In order to evidence this status, EEA nationals may apply for a document certifying permanent residence (DCPR).

The First Proposal stated that, as permanent residence is a status derived from EU law, it will cease to have effect once the UK leaves the EU. The First Proposal explains that EEA nationals and their family members who are in the UK before a set cut-off date (which is currently under negotiation but seems likely to be the date the UK formally leaves the EU) and have remained in the UK for five years, will be able to apply for a new “settled  status”.

EEA nationals and their family members will have a grace period (around two years) after the UK formally leaves the EU to apply for this settled status, provided they have lived in the UK for five years. If an EEA national or a family member of an EEA national will not have lived in the UK for five years by the end of the grace period, but were in the UK before the cut-off date, they may apply for a temporary residence permit valid up to the point at which they have lived in the UK for five years, at which stage they should be able to apply for settled status.

Settled status will be the same as the current indefinite leave to remain status (also known as settlement) that non-EEA nationals may be eligible to obtain if they remain in the UK for a set period (normally five years) under certain UK immigration categories.

Those with settled status will be able to reside freely in any capacity and undertake any lawful activity in the UK, to access public funds and services and to apply for British citizenship after meeting certain  requirements.

Current position
The Note slightly amends and expands on the First Proposal.

Proposed process
In response to feedback on the First Proposal, the UK Government has amended its proposals on how applications for EEA nationals will be processed post-Brexit:

  • For EEA nationals and their family members already holding a valid DCPR, there will be a simple process to exchange this for a settled status document, subject to ID verification, submission of a photograph, a security check and confirmation of ongoing residence in the UK following the date the DCPR is issued. The exchange of a valid DCPR for a settled status document will also be at a lower cost than the cost of applying for settled status for those who do not possess a DCPR. This is a significant change in stance for the UK Government, which had previously said that those who possessed a DCPR would have to go through a full, albeit, streamlined process to obtain settled status.
  • EEA nationals will not need to provide their biometric data, such as fingerprints, when applying for a temporary residence permit or settled status, however, non-EEA family members will be required to do so. EEA nationals will also not need to provide their biometric data when entering the UK. However, as now, they will need to provide their biometric data if they wish to apply to naturalise as British citizens.
  • When processing applications for temporary residence permits and settled status, the Home Office will work with other government departments, such as HMRC, to verify identity and to obtain existing government data. This should minimise the amount of documents applicants will be required to submit. The Home Office has already adopted this approach to a certain extent for EEA nationals who are applying for a DCPR on the basis that they have been employed in the UK for five continuous years.
  • EEA nationals and their family members will be able to apply for settled status in advance of the UK leaving the EU. As the UK Government will potentially need to issue settled status documents or temporary residence permits to around 3.6m EEA nationals and their family members who are currently living in the UK, this will provide it with a longer period of time to process these applications.
  • The fee for applying for settled status will not exceed the cost of a British passport, which is similar to the cost for applying for a DCPR. This will come as a considerable relief to EEA nationals as there was concern that the settled status application fee would be the same as the indefinite leave to remain application fee, which is currently £2,297.

Criteria for obtaining settled status
The UK Government has provided further details of the potential criteria for settled status:

  • Similar to the requirements for obtaining a DCPR, the potential criteria for obtaining settled status will be met by an EEA national once they have five years of continuous lawful residence in the UK as a worker, self-employed person, student, self-sufficient person or family member. However, for DCPR applications, EEA nationals and their family members are required to show that they held comprehensive sickness insurance during any period of lawful residence in the UK as a student or self- sufficient person. Many EEA nationals have found that they do not meet this requirement as they were unaware that they had to possess comprehensive sickness insurance when exercising these EU Treaty Rights. The UK Government has therefore stated there will be no requirement for EEA nationals and their family members to provide evidence of comprehensive sickness insurance for settled status applications. Furthermore, an application for a DCPR  on the basis that the EEA national was exercising an EU Treaty Right as an employed or self-employed person currently requires the UK Government to assess whether the employment / self-employment is marginal or ancillary. The Note states that the UK Government will not be applying this genuine and effective work test for settled status applications.
  • Provided EEA nationals and their family members meet the residence requirements for settled status, they will not have to account for every trip that they have taken outside the UK. This used to be required for DCPR applications but the Home Office guidance was recently changed so that applicants will not need to provide details of their travels outside the UK, provided they meet the residence requirements.
  • The Home Office will establish an administrative review process to quickly resolve any case-working errors. Applicants will also have access to an independent judicial authority and EEA citizens and their direct family members will have recourse to a statutory right of appeal. The Note does not state that extended family members, such as the unmarried partner or dependent parent of an EEA national, would have recourse to a right of appeal and therefore, their rights may not be protected in the same way as direct family members.

The EU’s response
The EU has already responded and, although it has seemingly accepted that EEA nationals will be governed by UK immigration law post- Brexit, it is not satisfied that the proposals set out in the Note sufficiently protect the rights of EEA nationals and their family members. It is of the view that the UK must guarantee the following:

  • Settled status must be an automatic process in the form of a simple declaration rather than an application process. Furthermore, the declaration must enable families to make one joint declaration.
  • The UK Government should preserve the rights of family members, which include direct family members and extended family members, under EU law post-Brexit. This is not mentioned in the Note as the UK Government’s view is that family members who are not in the UK before the cut-off date will be subject to the same rules as those that apply to non-EEA family members of British citizens. Currently, under EU law, family members are defined more widely than under UK immigration law and are not subject to additional requirements, such as the financial requirements set out in UK immigration law.
  • Settled status must not have any kind of conditionality, such as a criminality check. The UK Government has stated that an application for settled status may be refused if an EEA national has ever been convicted of a criminal offence.
  • The UK Government must bear the burden of proof when challenging declarations, which should be assessed on a case-by-case basis and in accordance with EU law.
  • Applications for settled status must be cost-free.

Therefore, the EU is of the view that the UK needs to go further in safeguarding the rights of EEA nationals and their family members living in the UK post-Brexit.

The way forward
Although the Note attempts to clarify and provide further assurances to EEA nationals and their family members concerning their ability to live in the UK post-Brexit, the EU’s response indicates that further progress is required before a final agreement can be reached.

However, one conclusion that can be drawn from the Note and the EU’s response is that those who qualify for a DCPR should seriously consider applying for this as soon as possible. This is because the UK Government has confirmed that it will be possible to exchange a DCPR for a settled status document through a short and simple process. Furthermore, if the EU has its way, those in possession of a DCPR may not even be required to submit an application for settled status.

The UK has already taken steps to simplify the process for obtaining a DCPR. For example, the Home Office now accepts copies of P60 End of Year Certificates as evidence of an EEA national exercising EU Treaty Rights as an employed person and as evidence of their residence in the UK. Furthermore, there are concerns regarding the UK’s ability to process and issue settled status and temporary residence documents, before the end of the grace period, to all EEA nationals who are currently in the UK and wish to remain in the UK post-Brexit. It is also worth noting that currently applications for a DCPR are being processed quite quickly, often within two to three months.

It is also important to note that EEA nationals and their family members who wish to obtain British citizenship must hold a DCPR. They must also be deemed to have held permanent residence status for one year before they may be eligible to apply for British citizenship. Therefore, for those who wish to apply for British citizenship, it is crucial they apply for a DCPR, if they are eligible, as soon as possible. If they have been in the UK for over six years, it is possible to obtain a DCPR on the basis that the EEA national was deemed to hold permanent residence a year before the DCPR application was submitted. Provided the Home Office accepts this, the EEA national may apply for British citizenship as soon as the DCPR is issued. The position becomes less clear in relation to settled status since, under UK immigration law, they may be required to hold the settled status document for one year before they are eligible to apply for British citizenship.

The full details of the Note can be found here.