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BREXIT: AN UPDATE ON THE EU SETTLEMENT SCHEME

Despite Brexit feeling like an ever-receding dream (or fast approaching nightmare depending on your political perspective), the EU Settlement Scheme is up and running and applies to all EU citizens and their family members currently living in the UK. The deadline for EU citizens and their family members to apply to the Scheme is 31 December 2020 if the UK leaves the EU without a deal, or 30 June 2021 if the UK leaves with a deal.

EU citizens and their family members who, at any point before the deadline, have been continuously resident in the UK for five years are eligible to apply for “settled status” enabling them to remain living in the UK indefinitely. EU citizens and their family members who arrive before the deadline, but who have not yet been continuously resident here for five years, are eligible to apply for “pre-settled status”, enabling them to remain living in the UK until they have reached the five-year threshold. They can then also apply for settled status.

Some of the key features and ‘benefits’ of the Scheme are as follows:

  • Pre-settled status and settled status are granted primarily on the basis of a simple test of residence in the UK. There is no requirement for the EU national to be “qualified” which, under the previous EEA regulations, meant working or a student or self-sufficient with private health insurance. This is good news for the many non-EU nationals who, under the previous rules, could not have applied for leave to remain in the UK solely on the basis of their relationship with their EU family member where that EU family member was not “qualified”;
  • Compared to other UK visa application routes, the Scheme is relatively user friendly and, in our experience so far, caseworkers do seek to grant status rather than refuse it (which is as promised when the Scheme was introduced);
  • The application process is online and normally no original documents need to be submitted to the Home Office. If they do need to be submitted, they are normally returned very quickly;
  • Decisions are currently being made within a couple of days or at most within a month;
  • The EU Settlement Resolution Centre has a telephone number which works and a person on the end of the telephone with whom an applicant can discuss an application in detail and seek advice;
  • Applications under the Scheme are free.

However, the government has been criticised for many aspects of the scheme, including the following:

  • Calls to the EU Settlement Resolution Centre, whilst helpful, are not free – this undermines the goodwill extended to EU citizens through the scrapping of the application fee;
  • Why does the application deadline in a no deal scenario need to be sooner than if the UK leaves the EU with a deal? A no deal scenario in October would leave EU citizens with only 14 months within which to regularise their status;
  • Under the current provisions of the Scheme, a right of appeal following an unsuccessful application under the Scheme will only be available in the event that the UK leaves the EU with a deal – we see no good reason why such a right should not be available in the event that the UK leaves without a deal as well;
  • There is no clarity as to what will happen to EU citizens and their family members currently resident in the UK who fail to confirm their immigration status through the Scheme before the deadline. In giving evidence to a recent parliamentary committee, the Home Secretary himself appeared unsure what their status and rights would be;
  • It is also unclear whether the Home Office would automatically contact or pass on information to any agency, Government department or individual (such as an employer or landlord) following an applicant’s unsuccessful application to the Scheme;
  • Failing to confirm in primary legislation the right of EU citizens, resident in the UK at the time of its exit from the EU, to remain in the UK. No-one should be left without rights because they have not made an application under the Scheme;
  • Failing to provide all EU citizens who successfully apply to the Scheme with hard copy written confirmation of their status; applicants currently only receive electronic confirmation.

Despite its shortcomings, given the fact that applications under the Scheme are free and decided quickly, we recommend that EU nationals and their family members do make an application under the Scheme as soon as possible. This might give some reassurance in the uncertain political climate. Please do not hesitate to contact us if you have any questions at all regarding your status under the Scheme, or the status of someone you know. We would be delighted to assist you with your application should one be required.   

About the Author

Alice Boyle is a solicitor with extensive experience in all areas of immigration law. She can assist both corporate and individual clients with any immigration, nationality or asylum matter and possesses a sound understanding of Tier 1 Investors, Tier 1 Entrepreneurs and Tier 2 matters. Alice has substantial experience of challenging UK Home Office decisions, regularly representing clients in appeals at both the First-Tier and Upper Tribunal and also by way of Judicial Review applications in both the Upper Tribunal and UK High Court.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy and environmental  sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and finance experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way. The above is only a very brief summary of some of the principal changes the Home Office has announced. Please contact us for further detail, or if we can assist you in connection with any of the applications mentioned in this article.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

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