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 currently living in the UK, and businesses that employ them, is what their status will be post-Brexit.

The UK Government has confirmed that, whatever the outcome of the Brexit negotiations, EEA/Swiss nationals will in most circumstances be able to enter and remain in the UK and effectively continue to exercise EU free movement rights, until at least 31 December 2020.

For those EEA/Swiss nationals who wish to remain in the UK post-31 December 2020, the UK Government has implemented a new EU Settlement Scheme (the Scheme). The Scheme is currently in a public test phase and is accepting applications from EU nationals that are currently residing in the UK. It will be opened to all EEA/Swiss nationals when the full roll-out is completed by 29 March 2019.  Provided that an agreement is reached on the UK’s withdrawal from the EU, any EEA/Swiss national present in the UK by 31 December 2020 will be eligible to apply under the Scheme until 30 June 2021.

In the event that the UK leaves the EU without reaching an agreement on its withdrawal, a so-called "no-deal" Brexit, the Scheme will still go ahead but only those EU nationals resident in the UK by 29 March 2019 will be eligible to apply and applications must be submitted by 31 December 2020. EU nationals will still be able to enter the UK after 29 March 2019, until 31 December 2020, as they do now without restriction. However, those who wish to remain in the UK for longer than three months will be required to apply for European Temporary Leave to Remain (ETLR) from within the UK.

EU Settlement Scheme

In summary, in the event that an agreement is reached on the UK’s withdrawal from the EU:

  • EU citizens who have been continuously and lawfully living in the UK for five years or more by 31 December 2020 will be able to apply for settled status (a form of indefinite leave to remain (ILR), also known as permanent residence or settlement) which will enable them to live in the UK indefinitely. 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. 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 for settled status 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. 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 under the immigration system in place at the time. The UK Government has confirmed in its White Paper that EU nationals will not receive preferential treatment under a post-Brexit immigration system, unless the UK reaches a trade agreement with the EU which grants beneficial access to the UK labour market to EU nationals.
  • Close family members (defined as spouses, civil partners and unmarried partners, dependent children and grandchildren) who are living with or join EEA/Swiss citizens after the UK leaves the EU, where the relationship existed on 31 December 2020, will also be able to apply for pre-settled or settled status.

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 EEA/Swiss applicants will not be given a physical document. They will receive e-mail confirmation that they have been granted pre-settled/settled status. After 31 December 2020, EEA/Swiss 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-EEA/Swiss family members will be issued with Biometric Residence Permits which they will need to carry with them when they travel overseas to ensure re-entry into the UK on that basis.

EEA/Swiss 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.

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) that enables 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 should be sufficient to satisfy the Home Office that the individual meets the continuous residence requirements for settled status.

Where an EEA/Swiss national has been living in the UK for five years but HMRC or DWP records do not support this, they will be given the opportunity to provide supplementary evidence, for example, utility bills or property documents, demonstrating their five years’ residence in the UK.

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 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 current passport to the Home Office, or book an appointment at a support centre, to have their passport verified.

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, EEA/Swiss nationals 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 EEA/Swiss nationals who hold this document will be able to use a simplified procedure to exchange this for settled status.

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 period.  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 must have held comprehensive sickness insurance during the continuous five year relevant period.

British citizenship/naturalisation

Applications for British citizenship can be made 12 months after the date on which applicants are 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 this status will have to wait 12 months before they can apply for British citizenship.

Consequently, 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/Swiss national may immediately apply to naturalise as a British citizen.

This means that those EEA/Swiss nationals wishing to apply for naturalisation as a British citizen at the earliest opportunity should apply for a DCPR rather than settled status.

It is important to note that many EEA/Swiss nationals are unaware that they are already British citizens. EEA/Swiss 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, as mentioned above, only those EEA/Swiss nationals who have entered the UK on or before 29 March 2019 will be able to benefit from the terms of the Scheme. Those entering the UK after this date will be subject to the following conditions.

  • Those who wish to come to the UK for work, study or residence will be able to do so for three months without needing to take any action before or after they arrive.
  • Those who wish to remain for longer than three months must apply online for ETLR from within the UK, which involves an ID and criminal record check.
  • Successful applicants will be granted 36 months' temporary immigration permission to remain in the UK. This status cannot be extended and it will not lead to ILR, although it will provide full work and residence rights.
  • Unsuccessful applicants will need to leave the UK – in practice this should only apply to those with fraudulent documents or serious criminal convictions.
  • When their ETLR expires, EEA/Swiss nationals will either need to leave the UK or switch into an appropriate visa category under the new immigration system which is due to come into force from 1 January 2021.
  • Non-EU family members of EU nationals will be covered by the same provisions but must apply for their permits before they travel to the UK.

Conclusion

Whatever the outcome of the Brexit negotiations, the UK Government’s Scheme is welcome news for EEA/Swiss migrants currently in the UK and those who arrive on or before 29 March 2019, even in a no-deal scenario. The status of those entering the UK after 29 March 2019 is entirely dependent on whether the UK reaches a deal with the EU on its withdrawal. Consequently, those EEA/Swiss nationals who are considering moving to the UK later in the year, may now wish to accelerate their plans to ensure that they qualify under the Scheme

For those who qualify, which will include, provided a withdrawal agreement is reached between the UK and the EU, those EEA/Swiss nationals resident in the UK before 1 January 2021, the terms of the Scheme are very generous and the vast majority of applicants should find the process for applying for settled/pre-settled status straightforward.  For those EEA/Swiss migrants entering the UK after 29 March 2019 in a no-deal scenario, they will still be able to live and work in the UK for up to three years, provided they obtain ETLR. However, once this status expires, they will be in the same situation as those EEA/Swiss nationals who enter the UK from 1 January 2021, in that they will be subject to the new immigration system that the UK Government plans to introduce.

It is worth noting that those EEA/Swiss nationals who have already been in the UK for over five years and wish to apply to naturalise as British citizens may wish to consider applying for a DCPR as soon as possible as this may offer a faster route to British citizenship.