Tips for EU nationals: Regularise your immigration status

Oct 1, 2020

Tips for EU nationals: Regularise your immigration status

 

 

 

 

 

 

 

 

Compiled by Judit Adorjan      Tips for EU nationals: Regularise your immigration status

 

 

On 31 January 2020, the UK has ceased to be a member of the European Union and has entered a transition period, which will last until the end of this year. During the transition period the UK continues to apply EU law and allow the free movement of people. On the 1st January 2021 free movement will end.

What do I need to do to retain my right to live and work in the UK?

You must apply to the EU Settlement Scheme (EUSS) to obtain settled or pre-settled status by the 30 June 2021 if:
✓ You are an EU, EEA or Swiss citizen or
✓ The family member of an EU, EEA or Swiss citizen and
✓ You have started living in the UK prior to 31st December 2020
✓ Irish citizens are not required to apply to the EU Settlement Scheme

Qualifying family members of people born in Northern Ireland will be able to apply to the EUSS from 24 August 2020.

If you will reach 5 years’ continuous residence at some point by 31 December 2020 or prior to 30th June 2021, you can choose to wait to apply until you reach 5 years residence. If your application is successful you will get settled status without having to apply for pre-settled status.

If you have already spent 5 continuous years in the UK and you intend to naturalise as a British citizen in the near future, it may be worth applying for permanent residency under the European rules rather than settled status under the UK rules. This is because a permanent residency application will backdate your claim to when you completed your 5 years, whereas the settlement scheme does not. This could mean you can make a British Naturalisation application sooner. However, please note that your permanent residence document will not be valid after 31 December 2020.

Can I apply to the EU Settlement Scheme from outside the UK?

You can apply from inside or outside the UK by using the EU Exit: ID Document Check app. https://www.gov.uk/guidance/using-the-eu-exit-id-document-check-app

Do I need to be aware of absences?

To obtain settled status/indefinite leave to remain in the UK you must have been a resident for a continuous 5-year period.

5 years continuous residence means that for 5 years in a row you have been in the UK for at least 6 months in any 12-month period, except for one period of up to 12 months for an important reason (ex. childbirth, serious illness, study, vocational training or an overseas work posting), compulsory military service of any length time spent abroad as a Crown servant, or as the family member of a Crown servant, time spent abroad in the armed forces, or as the family member of someone in the armed forces.

People with pre-settled status, in particular, need to be aware of the absence rules. If they are outside the UK for more than 6 months in any 12-month period during the 5 years it takes to qualify for settled status, this will break continuity of residence. If they return to the UK after 31 December 2020, they may lose the right to upgrade to settled status entirely.

Can I extend my pre-settled status before it expires?

➢ Pre-settled status cannot be extended, which is why it is very important to track your absences so you can eventually qualify for settled status.
➢ You can apply for settled status once you have got 5 years’ continuous residence, but before your pre-settled status expires.

How do I calculate absences from the UK to determine continuous residence?

➢ Calculate based on the period of time you are claiming to have resided in the UK in line with the regulations
➢ The period of residence you are relying on for eligibility to apply under the EUSS can be from past or current residence in the UK, it does not  need to be a continuing residence at the date of the application
➢ You must prove that you haven’t been outside the UK:
▪ for more than 6 months in any 12-months rolling period or
▪ a single absence of more than 12 months
▪ for absences exceeding the above-mentioned periods prove that these were for an important reason.

What happens if I have exceeded or I am going to exceed the limit for absences?

Absences of more than 6 months that do not fall within one of the above mentioned the exceptions will break a person’s continuous qualifying period.

For example:

Tonnis is from the Netherlands. He lived in the UK between 2012 and 2017 and obtained permanent residence in 2017. He then left the UK and hasn’t returned since. Due to the absence of more than 2 years he has lost his residency rights. Unless he enters the UK prior to 11pm on 31st December 2020 with the intention to live here, he does not qualify for pre-settled status under the EU Settlement Scheme.

Henna is from Finland. She moved to the UK in March 2017 and was granted pre-settled status in March 2019. Henna therefore expects to qualify for settled status in March 2022.
In March 2020, Henna resigns her job and travels to Finland to visit her family and help out in her father’s business. She returns to the UK in November 2020.
Henna has been out of the UK for more than 6 months, she now can’t qualify for settled status until November 2025, after completing 5 years continuous residence.
She has been out of the UK for less than 2 years, so she still has pre-settled status. But her pre-settled status will expire in March 2024, 5 years after it was granted. Henna can’t extend her existing pre-settled status beyond March 2024, so she would be unable to reach 5 years continuous residence in November 2025. She therefore needs to reapply for pre-settled status when she returns to the UK in November 2020.

The settled status clock cannot be restarted after 11pm on 31 December 2020.

If Henna only returns to the UK in February 2021, she still has pre-settled status and has no trouble getting back into the UK.
However, when she applies to upgrade to settled status, the Home Office will reject her application. Her absence of over 6 months has broken her continuous residence and it is not possible to begin a new qualifying period after 31 December 2020.Henna will likely have to leave the UK when her pre-settled status expires, unless she can get a new category of leave to remain, separate from the EU settlement Scheme.

What should I do if I am an EU/EEA employee on UK payroll currently on an overseas assignment?

➢ Ensure you will not be spending more time on the assignment than your disqualifying period:
o Absences of not more than 5 years in a row (4 years for Swiss citizens) for those with settled status or
o Absences of not more than 2 years in a row for those with pre-settled status

➢ If you have lost your residency rights due to disqualifying absences, you must enter with the intention to live in the UK prior to 11pm on 31st  December 2020 and then apply to the EUSS on or prior to 30 June 2021.

What happens if I do not qualify for pre-settled or settled status?

➢ You will need to meet the UK immigration rules at the time which could be more prohibitive and expensive.

Can I apply for British Citizenship?

You can apply if:

✓ The country of your current nationality allows dual citizenship
✓ If you have held permanent residence or settled status for at least 12 months before you apply
✓ If you are married to a British citizen, you can apply for British naturalisation immediately once you have obtained permanent  residency or settled status.

If you require any further information, please contact Migrate UK 01235 841 568

Tips for EU nationals: Regularise your immigration status

Karen Kaur and Jonathan Beech