European Union citizens’ rights post-Brexit

Since the result of the European Union (EU) referendum, one of the biggest concerns for EU citizens currently living in the UK, and businesses who employ them, is what their status will be post-Brexit.

The UK Government has recently confirmed that, whatever the outcome of the Brexit negotiations, EU nationals will be able to remain in the UK, effectively continuing to exercise EU Free Movement Rights until 31 December 2020.

For those EU nationals wish to remain in the UK post-31 December 2020, the UK Government has announced a new EU Settlement Scheme, which will be open for applications from the beginning of 2019 until 30 June 2021, details of which are set out below. Any EU national present in the UK by 31 December 2020 will be eligible to apply under the scheme provided that an agreement is reached on withdrawal from the EU.

In the event of a no-deal Brexit, the EU Settlement Scheme will still go ahead but only those EU nationals resident in the UK by 29 March 2019 will be eligible to apply. EU nationals will still be able to travel and move to the UK until at least 31 December 2020. The Government has not yet announced how those European nationals who enter between 30 March 2019 and 31 December 2020 will be treated longer term and more details are expected in early 2019.

The economic reasons for granting EU citizens who are currently in the UK the right to remain post-Brexit are almost beyond debate. There are currently almost 3.8m EU citizens in the UK; around 2.3m of them in work. If these workers were suddenly required to leave the UK, the effect on the UK economy would be cataclysmic.

EU Settlement Scheme

In summary, the UK Government has announced the following policy for EU citizens and their family members who wish to remain in the UK post-Brexit:

  • EU citizens who arrive in the UK by 31 December 2020, and have been continuously and lawfully living in the UK for five continuous years or more, will be able to apply for “settled status” which will enable them to reside in the UK indefinitely. This means that they will be free to reside in the UK, able to access public funds and services and eventually apply for British citizenship.
  • EU citizens will have until 30 June 2021 to apply for this status.
  • EU citizens who arrive in the UK by 31 December 2020 but who have not completed the five-year qualifying period will be granted “pre-settled status” which will enable them to remain in the UK until they have reached the five-year threshold for applying for settled status. Again, they will have until 30 June 2021 to apply for this.
  • EU citizens seeking to move to the UK after 1 January 2021 will need to apply for the appropriate immigration permission in the relevant category. In September 2018, the Migration Advisory Committee advised the UK Government that EU migrants should not have preferential treatment in any future immigration system. The government has agreed with this recommendation and it is therefore likely that future EU migration will be governed largely by a modified version of the current UK immigration system.
  • Family members who are living with, or join, EU citizens in the UK before 31 December 2020, will also be able to apply for settled status, usually after five years in the UK.
  • Close family members (defined as spouses, civil partners and unmarried partners, dependent children and grandchildren) will be able to join EU citizens after the UK leaves the EU, where the relationship existed on 31 December 2020.

Applicants for settled status will only be required to demonstrate continuous residence in the UK and that they have not been involved in serious or persistent criminal behaviour. This latter requirement will also apply to applications for pre-settled status.

Continuous residence means that they must not have been absent from the UK for more than six months in any 12 month period. An 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 EU applicants will not be given a physical document. They will receive e-mail confirmation that they have been granted pre-settled / settled status, which will be linked to their passport. After 31 December 2020, EU nationals who wish to enter the UK under their settled / pre-settled status will simply be required to present their passport on arrival in the UK. The Home Office systems will then check their details to confirm that the individual has settled / pre-settled status. Successful non-EU applicants will be issued with Biometric Residence Permits (BRPs) which they will need to carry with them when they travel overseas to ensure re-entry to the UK on that basis.

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.
The UK has stated that it expects to extend this offer to resident citizens of Norway, Iceland and Liechtenstein (which are part of the European Economic Area (EEA)) and Switzerland (which is not part of the EU or the EEA).

Furthermore, as the rights of British and Irish citizens are enshrined in the Ireland Act 1949, Irish citizens are not required to apply for settled / pre-settled status. Irish citizens’ rights are not affected by Brexit.

Application process

The Home Office has developed a mobile phone app (which currently only works on Android phones due to security restrictions on iPhones) which will enable applicants to scan the biometric chip on their passport and upload this information onto an application form. Applicants will then be asked to confirm whether they have any criminal convictions. The Home Office will check records held by HMRC and DWP and will also undertake a criminal record check.

Where an individual has made National Insurance contributions for the last five consecutive years, this will be sufficient to satisfy the Home Office that the individual meets the continuous residence requirements for settled status, which will be granted electronically.

Where an EU national has been living in the UK for five years but HMRC or DWP records do not support this, applicants will be given the opportunity to provide supplementary evidence of residence, for example, utility bills or property documents, for the years where they do not have the required HMRC / DWP records.

If an applicant has not been resident in the UK for five years, pre-settled status will be granted for five years.

An online form will also be available and the Home Office is considering making the mobile app available in certain support centres for those who need assistance or do not have a mobile phone capable of using the app. 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 passport verified.

There will be a fee of £65 for adults and £32.50 for children under 16.

If an individual who has been granted with pre-settled status does not satisfy the five year continuous residence requirement for settled status before their pre-settled status expires, they will not be able to extend their pre-settled status. If they wish to remain in the UK, they will be required to obtain permission in the appropriate category under the immigration system in place at the time.

Document Certifying Permanent Residence (DCPR)

Currently, under EU law, EU citizens who have lived in the UK for five continuous years and who have exercised an EU Treaty Right throughout this period are deemed to hold permanent residence. They may apply for a DCPR in order to evidence this status, although this is not mandatory. The UK Government has stated that these documents will cease to be valid after 31 December 2020, although EU nationals who hold this document will be able to use a simplified procedure to exchange this for settled status, free of charge.

In order to qualify for a DCPR, individuals must not only provide evidence that they have been continuously resident in the UK for five years but also demonstrate that they have been exercising an EU Treaty Right, such as employment, self-employment, self-sufficiency and / or study, during this time.  The requirements for obtaining a DCPR are therefore more stringent than those which apply to settled / pre-settled status. For example, those who have been studying and / or self-sufficient at any point during the relevant five year continuous period must show that they held comprehensive sickness insurance during that time.

British citizenship / naturalisation

Applications for British citizenship can be made 12 months after the date on which applicants were granted settled status or after they were deemed to hold permanent residence under EU law. Since settled status is an immigration permission granted under UK law, all those who obtain settled status will have to wait for 12 months after they are granted with this status before they can apply for British citizenship.

However, for those EEA nationals who have already spent more than five years in the UK and are looking to obtain British citizenship, 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 EEA national may immediately apply to naturalise as a British citizen.

This means that those EU nationals wishing to apply for naturalisation as a British citizen at the earliest opportunity may wish to apply for a DCPR rather that settled status, even after the EU Settlement Scheme goes live.

It is important to note that many EEA nationals are unaware that they are already also British citizens. EEA 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.

Conclusion

The UK Government’s plans are welcome news for EU migrants currently in the UK and those who will be present in the UK before 1 January 2021. This is because it has effectively extended EU Free Movement Rights until 31 December 2020, as it will only be mandatory for EU citizens who wish to remain in the UK to hold settled / pre-settled status after this date.

The terms of the EU Settlement Scheme are very generous and the vast majority of applicants should find the process for applying for settled / pre-settled status straightforward. For those EU migrants planning to come to the UK from 1 January 2021, the process will be much tougher and likely to be broadly in line with the rules that currently govern non-EU migrants.

Those EEA nationals who have already been in the UK for over five years and wish to apply to naturalise as a British citizen may wish to consider applying for a DCPR, even after the EU Settlement Scheme goes live, as this may offer a faster route to British citizenship.