Statement of Intent
The UK Government has published a detailed Statement of Intent in respect of the preservation of EU Citizens rights in the context of the United Kingdom’s withdrawal from the European Union.
Following the two-year notice period provided for under Article 50 of the Lisbon Treaty, the United Kingdom is due to leave the European Union on the 29th of March 2019. However, a draft Withdrawal Agreement (“the agreement”) with the European Union published in March 2018 provides for transitional arrangements (also known as an implementation period) until 31st December 2020. The agreement effectively extends EU rights of free movement and residence for EU nationals through the implementation period.
This extension of EU free movement rights will become part of UK domestic law under a Withdrawal Agreement and Implementation Bill which will be brought before Parliament in the autumn.
The Government has made clear in a number of documents and ministerial speeches over the last twelve months that safeguarding the rights of EU citizens and their family members living in the UK and ensuring reciprocal protections for UK nationals living in the EU was a first priority for the Brexit negotiations. Under the agreement, EU citizens and their family members residing in the UK before 29th March 2019 will be able to continue to live and work in the UK permanently. Their rights to healthcare, employment and access to benefits will continue and their existing family members currently outside the UK will continue to be able to join them.
The agreement with the EU extends the same protections to EU citizens and their family members arriving in the UK during the implementation period. However, during this period, qualifying EU nationals and their family members will be required to obtain a long-term status under UK domestic immigration law.
The EU Settlement and Pre-Settlement schemes are designed to enable these individuals to obtain Settled Status (also known as Indefinite Leave to Remain) or Pre-Settled Status (Leave to Remain for a five year period).
There are approximately three million EU nationals and qualifying family members currently residing in the UK. The Government’s challenge is to implement a scheme that meets the objective of being “simple and straightforward”, imposing a minimum inconvenience to applicants, whilst at the same time preserving the integrity of the UK’s immigration system. The Statement of Intent promises a scheme that will be “streamlined and user-friendly and draw on existing Government data”. The Home Office intends to implement a scheme that can function online or through an operational app available on handheld devices, thereby reducing application time and the burden of paperwork.
The intention is to roll out the scheme on a trial basis commencing in the autumn of 2018. This phased roll out will convert into a fully operational scheme by the end of the year.
EU nationals who enter the UK prior to the effective Brexit date (31st December 2020) will remain eligible to apply until June 2021. New UK domestic immigration arrangements for EU nationals and their family members (as yet undefined) will come into force on 1st January 2021.
A Three Stage Process
The Home Office is designing an online application form that promises to be short, simple and user-friendly. There will be three core criteria:-
- Identity – Identifying the personal identity and nationality of the applicant normally through a passport or national identity card.
- Eligibility – Establishing that the applicant is resident in the UK and, if appropriate, is a family member of eligible EU citizen. The Government aims to assist the applicant to establish their continuous residence on an automated basis using data held by HM Revenue & Customs and, in due course, the Department for Work & Pensions. The aim is to keep documentary evidence to a minimum.
- Suitability – Checks will be made against UK criminality and security databases, as well as overseas criminal records, to identify serious or persistent criminals or anyone who poses a security threat.
Who Can Apply?
EU citizens and their family members residing in the UK before the end of the implementation period on 31st December 2020 will be able to apply for UK immigration status under the scheme. This means that EU citizens entering the UK at any time in 2020 under “Free Movement” provisions will be eligible under the scheme regardless of the duration of their stay. This will include those previously residing in the UK who are outside the UK on 31st December 2020 but who have maintained continuity of residence.
Applicants under the scheme will not be required to show that they meet all the requirements of current free movement rules, such as holding comprehensive sickness insurance or generally to detail the exercise of specific rights (e.g. the right to work or study under EU Law). The focus, as a matter of government policy, will be on the establishment of continuous residence in the UK.
Validity and Cost
Applications will have to be made in the UK using the “required application process”. This will be a digital application process through the Home Office website or on an app. In some circumstances a paper process may be offered as an alternative.
The scheme is currently undergoing a testing phase. The Home Office aims to learn from the experience of test user groups before the autumn rollout.
The application fee will be £65.00 for a person aged 16 or over. The fee for those aged under 16 will be £32.50.
There will be no application fee for Settled Status where the applicant has previously been granted Indefinite Leave to Remain in the UK and the status has not lapsed or been revoked.
Applicants under the scheme will not be required to pay the Immigration Health Charge.
The applicant will have to enrol their facial image so that this can be compared with the photograph on the identity document provided. An EU citizen will be able to upload a passport style photograph as part of the digital application process.
What Does Settled Status Mean in Practice?
EU citizens and their family members who are granted Settled Status or Pre-Settled Status will be able to remain in the UK with the same rights as before, including the entitlement to work, study and access public services and benefits.
Evidence of the status will be granted in digital form. No physical documents will be provided. Applicants under the scheme will not be required to meet the Knowledge of Language and Life in the UK tests that otherwise apply to application for Indefinite Leave to Remain.
Holders of Settled Status under the scheme will be able to be absent from the UK for any reason for a period of five consecutive years before their status lapses. This compares with an absence from the UK of two consecutive years for holders of Indefinite Leave to Remain under the current Immigration Rules.
Holders of Pre-Settled status will be granted limited Leave to Remain for five years and will be able to maintain their continuous residence in the UK and apply for Settled Status upon completion of five years continuous residence.
The publication of the Statement of Intent is a major step in clarifying the position of EU migrants and their family members in the context of Brexit.
Further and more detailed information is contained within the document itself.
Magrath Sheldrick LLP will continue to publish guidance and advice in respect of Immigration and Brexit.
Please do not hesitate to contact your Magrath Sheldrick contact for further information.