The UK ceased to be a member of the EU on 31 January 2020 and entered a transition period. EU citizens who have taken up residency in the UK before 11pm on 31 December 2020 can still apply to the EU Settlement Scheme by 30 June 2021. Migrate UK offers questions, answers and tips for EEA citizens – up to date as of October 2020
What is the legal status of EU citizens during the post-Brexit “grace period”?
Free movement will come to an end on 1 January 2021. Existing residents have until 30 June 2021 to apply for settled or pre-settled status.
For those who chose to apply to the Settlement Scheme in the first 6 months of 2021 the Home Office have laid before Parliament the Citizen’s Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020.
The grace period has been introduced to protect those potentially vulnerable (social exclusion, abuse or exploitation), those who erroneously believe that the scheme does not apply to them and those who have not received the necessary support to make a successful application.
A survey conducted in Cambridgeshire by the Social Market Foundation think tank found that 40% of EU migrant workers who intend to stay in the UK long term are still unaware of the EU Settlement Scheme (EUSS). Awareness was not much higher among those intending to remain in the UK permanently or to extend their stay, at under 60%. The report also concluded that the EUSS is poorly understood by users. While overall application numbers are high, 4.6 million, language barriers, low levels of literacy or low digital literacy may result in some people not having access to high quality information about settled status and they are at risk of being left out.
The Home Office is yet to publish details about what will happen to those who miss the application deadline, but the default position is that they will be unlawfully resident and can be removed from the UK.
Who qualifies for settled or pre-settled status?
A person habitually living in the UK by 11pm on 31st December 2020 who is:
- An EU, EEA or Swiss citizen,
- A family member of an EU, EEA or Swiss citizen
- A qualifying family member of a Northern Irish person, or
- A family member whose family relationship with a relevant EEA citizen or a qualifying British citizen has broken down permanently due to domestic violence or abuse
They must apply to the EUSS by 30 June 2021.
‘Habitually living in the UK’ means that a person has entered the UK with the intention to make it their main home, plans to stay and has the right to reside in the UK.
Irish citizens are not required to apply to the EUSS.
Can I apply to the EUSS from outside the UK?
You can apply from inside or outside the UK by using the EU Exit: ID Document Check app.
What are the rules on pre-settled status?
According to Appendix EU of the Immigration Rules a qualifying EU citizen can move to the UK at any time before the end of the transition period on 31 December 2020. However, to be eligible for the EUSS they must have completed a ‘continuous qualifying period in the UK’.
For those applying for pre-settled status the continuous qualifying period will be less than 5 years. The rules do not specify any minimum length. However, the shorter and the more temporary a person’s stay in the UK, the greater the possibility that their stay will not be regarded a ‘genuine residence’.
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.
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.
What are the absence rules to be aware of and are there any concessions?
To obtain settled status/indefinite leave to remain in the UK you must have been a resident for a continuous 5-year period.
Five 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.
One period of up to 12 months for an important reason:
- 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
A current absence from the UK that is not out of choice, but directly related to the COVID-19 pandemic (confirmed to Migrate UK on the 29 September 2020 by EU Settlement Resolution Centre).
If you are applying for settled status and have exceeded your absence limit due to the coronavirus you must provide relevant evidence stating, why you were unable to return to the UK. For ex. Correspondence from Public Health England, your embassy or the Foreign and Commonwealth Office on the current travel disruptions due to the pandemic, any regular communications with your airline, demonstrating that you were unable to return to the UK on a pre-booked return flight.
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.
How are absences from the UK calculated to determine continuous residence?
- 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
- You haven’t had a single absence of more than 12 months
- For absences exceeding the above-mentioned periods prove that these were for an important reason or for reasons directly related to COVID-19.
What happens if you exceeded the limit for absences?
Absences of more than 6 months that do not fall within one of the above-mentioned exceptions will break a person’s continuous qualifying period.
Henna is from Finland. She moved to the UK in March 2017 & 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 & travels to Finland to visit her family & 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 11 pm on 31 December 2020.
If Henna only returns to the UK in February 2021, she still has pre-settled status & 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 EUSS.
What about EU/EEA employees on UK payroll currently on an overseas assignment?
Ensure you will not be spending more time on the assignment than your disqualifying period:
- absences of not more than 5 years in a row (4 years for Swiss citizens) for those with settled status or
- 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 31 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?
If you have already spent 5 continuous years in the UK and 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.
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.
There has been a recent update to the good character policy for naturalisation. To qualify for citizenship, certain EU citizens in the UK must have held comprehensive sickness insurance (CSI) or a European health insurance card (EHIC) for 10 years, instead of the previously required five years period. Comprehensive sickness insurance is a legal requirement for EEA and Swiss students, self-sufficient persons and their family members who are residing in the UK with them.
Migrate UK has extensive experience in this area of immigration law. Qualified immigration lawyers are available to discuss questions, answers and tips for EEA citizens. Call us for free initial advice on 01235 841 568 or email firstname.lastname@example.org