EU Settlement Scheme

The EU Settlement Scheme is designed to offer EU and non EU-nationals and their family members an opportunity to obtain status in the UK before the end of the transition period i.e., 31st December 2020.

EU citizens living in the UK by 31st December 2020 are required to apply to the EU Settlement Scheme by 30th June 2021 in order to retain their residence rights. At the moment it is difficult to evaluate how successful the EU Settlement Scheme has been as we don’t know how many people are eligible to apply for the EU Settlement Scheme and how many people were granted pre-settled status for example, where they should have applied for Settled Status.   The grant of pre-settled status lasts for up to five years and time will tell whether those with pre-settled status will upgrade to Settled Status later in the day.

Settled vs. Pre-Settled Status – What is the difference?

People who have lived in the UK for at least five years are eligible for Settled Status, which entitles them to live permanently in the UK and later apply for UK citizenship.  People living in the UK for less than five years are eligible for Pre-Settled Status and can apply for Settled Status once they have reached five years of residence.  Children under 21 are eligible for settled status if one of their parents has been granted Settled Status, even if they do not have five years’ residence.  If you are an EU citizen you may be able to apply for Settled Status with less than five years’ residence in certain circumstances.

Under What Circumstances can one obtain Settled Status in less than five years?

1. If you stop working or start to work in an EU country you and your family can get settled status with less than five years’ continuous residence in certain situations;
2. If you reach the State Pension age or retired early;
3. If you start working in an EEA country and you have lived in the UK for three years beforehand and have returned to the UK once a week.

What are the Deadlines and Timing?

The Settlement Scheme opened on 29th March 2019.  Anyone who has established residence in the UK by the end of December 2020 is eligible to apply.  The UK Withdrawal Agreement includes a six month grace period for applications which means that the final deadline to make an application is the end of June 2021.

What Happens if I Miss the Deadline?

People who miss the deadline will be able to apply later if they have “good reason” but it is not clear how these are defined.

Apply for EU Settlement Scheme Family Permit

An application under the EU Settlement Scheme to come to the UK can be made by family members of EU Nationals or of British citizens, however, this application can only be done from outside the UK.

What Family Permits are for?

A family permit enables the non-EU national to travel to join their family members in the UK, and the permission to enter will be for six months. During these six months, one can study or work but must make a further application before the leave expires. The further application must be done under the EU Settlement Scheme.

Who can apply?

To apply for a Family Permit, you need to demonstrate that your family member started living in the UK by 31st December 2020. You can also apply for a Family Permit if you have “a retained right of residence” because the family member from the EU died or the relationship broke down. If you are a family member of a British citizen and lived with them in a European country, you can make this application.  This is known as a Surinder Singh application. However, you must have lived with them before 1st January 2021 and before returning with them to the UK.

What is a Surinder Singh application?

The Surinder Singh rule permits family members of qualifying British citizens to return to live with them in the UK after a period of residence in an EU member state, in accordance with the previous EU Free Movement law.  Following Brexit, those applicants need to apply for an EU Settlement Scheme Family Permit to enter the UK.  The requirements are set out in Appendix EU Family Permit to the Immigration Rules.

What documents are needed for a Surinder Singh application?

Evidence that you are an eligible family member, for example marriage certificate or birth certificate and a valid ID card such as a passport or national ID card. You will need to provide evidence of cohabitation with the British family member abroad and evidence that he or she was working or self-employed or self-sufficient or studying in the country where you lived together.

What is the Deadline if I have non-EU family members living Overseas?

If you have a non-EU family member who is currently overseas, the deadline for them to apply to join you in the UK is 30th June 2021, so long as you can prove they were your ‘close family member’ before the 31st December 2020. The deadline is 31st December 2025 if you are a Swiss national and you get married or form a civil partnership with a non-EU national after 31st December 2020.

What are Derivative Right applications and What is the Deadline for making these Applications under the EU Settlement Scheme?

Derivative rights are rights of residence which are derived from case law of the Court of Justice of the EU (CJEU), as opposed to the Free Movement Directives.  These rights are commonly referred to as Chen, Ibrahim-Teixeira or Zambrano rights taking their name from the relevant CJEU judgements.  The deadline to apply based on these cases is 30th June 2021. You will have to use a paper application form and cannot use online forms.

Can I make an Application under the EUSS if I have a Criminal Conviction in the UK or abroad?

Having a criminal conviction is not a bar to making an application.  All applications are subject to checks against the Police National Computer and in some cases the Home Office will also carry out overseas Criminal Record checks.  According to the Home Office guidance, there is no need to declare spent convictions, cautions or alternatives to prosecution.  If you do have criminal convictions, the EUSS application will not necessarily be refused. It depends on the facts of the case.

Do I have a right of Appeal against a refusal of an application under the EU Settlement Scheme?

Applications that have been submitted under this scheme after 11 pm on 31st January 2020 attract a right of appeal, where they are refused or where one is granted pre-settled status and believe they qualify for settled status.  Alternatively, one can apply for Administrative Review if it is believed that the decision-maker made an error or did not follow the published guidance.  An alternative would be to submit a fresh application before 30th June 2021, depending on the circumstances of the case.

What is an Administrative Review and what is an Appeal?

An Administrative Review is a request to the Home Office to reconsider a refusal decision on the grounds that the refusal is not in accordance with the relevant facts and laws.  An Appeal is lodged with the First Tier Tribunal and will be heard by an independent Judge.

What is Appendix EU?

Appendix EU sets out the basis on which EA citizens and their family members and the family members of a qualifying British citizen can apply to remain in the UK and be granted Indefinite Leave to enter or remain or limited leave to enter or remain.

What is meant by “continuous resident”?

This means not having left the UK for more than six months at a time (unless there is a single period of absence not exceeding 12 months and there was an important reason, pregnancy, child birth, serious illness, study of vocational training or compulsory military service for any period. In order to make the application you will need:

Can I lose my status?

Either status can be taken away based on the Post Brexit offending and a person can face a Deportation Order and the ordinary Deportation Orders will apply, therefore:

1. Four years + term of imprisonment, Deportation unless very compelling circumstances
2. One to four years imprisonment, Deportation unless private life or family life exceptions engaged or very compelling circumstances
3. Less than one year, non-persistent and non-serious harm, no automatic deportation but may still be deported if conducive on the public good grounds basis

Who are the family members under the EU Settlement Scheme?

1. Spouse, civil partner, under 21 child, parent or grandparent
2. Extended family, durable partners and dependent relatives

If the relationship formed before 31st December 2020 and family members can join from abroad in the future after that date.  If formed after the normal family visa rules apply.

How to evidence residence?

The Home Office uses an applicant’s National Insurance Number to check HMRC records. In theory if the applicant has been paying NI Contributions (NIC) they will not need to provide further evidence. An automated check will be carried out once the application has been submitted. This should indicate one of the following preliminary results:

1. “You’ll be considered for settled status.”
2. How long have you lived in the UK?
3. We need more evidence of your residence.

However automated checks do not always work and some applicants will still need to provide evidence of residence. This is because not everyone will have data with HMRC or DWP (for example, those who have never worked or received benefits). Or there might be gaps, meaning that someone who has been here for five years or more will be incorrectly offered pre-settled status. If that is the case evidence of residence should be submitted.

What can count as further evidence of residence?

The EUSS Guidance lists ‘preferred’, ‘alternative’ and ‘unacceptable’ evidence. There are some practical limitations on what and how much evidence can be submitted online.

What is the status of Irish citizens?

Irish citizens can apply under the EUSS but do not have to. However, their non-EEA family members must apply if they do not have leave to remain in another capacity. For first time it is clarified in statute. Section 2 of the Immigration Act 2020 inserts a new section 3ZA into the Immigration Act 1971 which provides “An Irish citizen does not require leave to enter or remain in the United Kingdom”.

What is the status of people born in Northern Ireland?

Special position of people born in Northern Ireland as result of concession and amendment to EUSS. It came into force on 24 August 2020. It amends Appendix EU to open up EUSS to family members of ‘relevant person of Northern Ireland’.

What is the status of non-EU family members of British citizens?

• In general, non-EEA family members of British citizens cannot apply under the EUSS and should apply under Appendix FM of the Immigration Rules. But there are some exceptions as follows:

1. Surinder Singh cases – this route is for the family members of British citizens exercising free movement rights by living and working in an EU country before 31 December 2020. They cannot benefit from this category if they moved to EU after this date. Regulation 9 of the EEA Regulations applies. These applicants cannot apply online or via the app and must use a paper form which is not on the website. They will need to request a form from EU Settlement Resolution Centre. From 24 August 2020 there is a concession which means people born in Northern Ireland can use the Surinder Singh route even if living elsewhere in the UK.
2. Lounes dual nationals: CJEU then held in Lounes (2017), that where EU citizen exercises free movement rights, and then obtains the nationality of a member state of residence through naturalisation or registration, they may continue to rely upon free movement rights. This route is not in Appendix EU but the guidance says at page 17: A family member of a relevant EEA citizen can also apply where they are the family member of a dual British and EEA citizen who exercised free movement rights in the UK prior to the acquisition of British citizenship and who retained their EEA nationality of origin after acquiring British citizenship. This reflects the CJEU judgment in Lounes.

What happens if I have an EA Residence document obtained in the UK before the EUSS?

• Family members with EEA residence cards and permanent residence cards as well as EEA nationals with permanent residence registration certificates still need to apply for status under the EU Settlement Scheme before 30 June 2021. Anyone who has not applied by then, even if they already have EEA documents which, on the face of it, appear to be valid, may become overstayers in the UK and will be subject to the hostile immigration environment, including having no permission to work.
• Those with permanent residence documents will not have to provide further evidence of qualifying residence, but will be subject to criminality and security checks. The Home Office will also check that they have not been absent for more than 5 years.
• EU nationals who moved to the UK prior to 2006 may have indefinite leave to remain rather than permanent residence. They are not required to apply for settled status but they may choose to. Alternatively it can be sensible to update their ILR document to a biometric residence card if they do not have one and consider applying to be naturalised as a British citizen.

What is the new guidance for Covid?

New guidance has been published on 10th June 2021 for Covid and EUSS.  The guidance supplements the EU Settlement Scheme, EU and other EEA guidance and tells the Home Office how to consider applications made to the EU Settlement Scheme from EU nationals and their family members when the continuous qualifying period of residence in the UK has been affected by Covid 19 Pandemic.

What is the exception to continuous qualifying period of residence?

An EA citizen who has been absent from the UK for a single period of up to 12 months because of Covid 19 is permitted under this guidance to rely on that absence as being for an important reason and not lose his continuous qualifying period.

What, “because of Covid 19”, actually means?

It means ill with Covid 19, in quarantine, self-isolating, shielding, caring for a family member affected by Covid 19, prevented from returning earlier to the UK due to travel restrictions, advised by university or employer not to return to the UK and to continue studying or working remotely in their home country etc. In short, an applicant can rely on any Covid 19 related reason, including where they chose to live or remain outside of the UK because of the Pandemic as being an important reason permitting an absence of up to 12 months.  Important to note this is not an exhaustive list of such reasons, and each case must be considered on an individual basis, in light of the information and evidence provided by the applicant.

What happens if you are returning to the UK with a pre-settled status?

EA citizens returning to the UK after exceeding the absence permitted under Appendix EU due to Covid 19 and who hold pre-settled status (as long as they don’t have a period of absence of more than two consecutive years) can continue to reside in the UK until this status expires, and then may be eligible for settled status on the basis of this guidance.  Where their pre-settled status has lapsed following the absence from the UK or more than two consecutive years due to Covid 19, an EA citizen covered by this guidance can also rely on it in applying directly to the EUSS from overseas allowing them to be granted status whilst abroad, and then resume their residence in the UK.

Can I apply for British citizenship?

We can also help you make an application to naturalise as a British citizen. EEA nationals who have held permanent residence status in the UK for at least 12 months are eligible to apply for British citizenship. In addition, in order to apply you must have lived in the UK for a minimum of 5 years before and you must have been physically present in England, Wales, Scotland, Northern Ireland, the Isle of Man or the Channel Islands on the day 5 years before the application is received by the Home Office. It is also important that you have not broken the continuity periods set by the Home Office. This means that you must not have had more than 540 days outside the UK in the five-year period before making the application and you must not have had more than 90 days outside the UK in the 12-month period before making the application. However, the Home Office can exercise discretion in certain circumstances for excessive periods of absence.

In order to make a successful application we will complete the online form, compile a bundle of evidence to show that you meet the legal requirements and submit legal representations in support of your application. It is essential that you provide your passport, proof that you have satisfied the English language requirement and a certificate to show that you have passed the Life in the UK test. The English requirement is fulfilled by either having a degree that was taught in English or passing a language test recognised by the UK government, to the level of CEFR level B1.

For more information on British nationality, click here.