EU SETTLEMENT SCHEME
The EU Settlement Scheme began a test phase from 28 August 2018, pursuant to the new Appendix EU of the Immigration Rules (first published in a Statement of Changes in July 2018). The test phase is open to students and those on the payroll of around 16 selected universities and hospitals in Liverpool. The guidance for the EU Settlement Scheme (“the Scheme”) was published on 28 August 2018. It was intended for Home Office staff use, and set out how caseworkers will process applications for either Indefinite Leave to Remain (“ILR”) or Limited Leave to Remain (“LTR”).
Whilst the Guidance only applies to applicants in the test phase, it is expected that the same or similar guidance will apply when the Scheme is open to the next phase of applicants. At this stage, the next phase of the Scheme is expected to be published around Autumn 2018, with the Scheme fully rolled out by March 2019.
Applications under Appendix EU are either for ILR or LTR (also known as “Settled” or “Pre-Settled status”) based solely on residence in the UK. Applicants will not need to show qualifying activity, as currently under the Immigration (EEA) Regulations 2016 (“the EEA Regulations”). ILR is to be granted where an EU national (or family member) has completed a continuous period of five years’ residence (paragraph EU2) and LTR is to be granted when the EU national (or family member) has not yet completed the five year period (paragraph EU3). Children can be granted ILR along with their parents, even if the child has not completed the full five years’ residence.
If granted LTR, the individual can remain in the UK with that status for five years or until they meet the requirements for ILR if sooner (although LTR can be lost through two years’ absence from the UK).
Applicants must be resident in the UK before 31 December 2020 (“the Specified Date”) in order to fall within the scope of Appendix EU (or, if a family member, the relationship must have existed before the Specified Date and must continue after it). Individuals with Permanent Residence documents issued pursuant to the the EEA Regulations must switch to Settled Status or apply for nationality before June 2021. Irish nationals, or those with ILR or Indefinite Leave to Enter (“ILE”) under the Immigration Rules, do not have to apply for Settled Status at all but can do so if they wish, although their family members will be required to apply.
The definitions and criteria largely replicate the Citizens Rights Directive (2004/38/EC) (otherwise known as the Free Movement Directive) and incorporate leading case law (Surinder Singh, Chen, Lounes, etc – although notably not Zambrano), which itself is reflected in the EEA Regulations.
However, the Scheme only applies to EU citizens and does not include citizens of the European Economic Area (Liechtenstein, Norway or Iceland) or Switzerland. There is no requirement for students and the financially independent to have held comprehensive sickness insurance or to show they had sufficient resources to support themselves.
In addition, it includes an assumption that direct relatives (parents, grandparents and great-grandparents) are dependent, meaning no evidence of dependency is required. No such assumption exists for children aged 21 and over, who must prove their dependence on their EU national (or their spouse) parent (as is the case under the EEA Regulations).
Other dependent relatives (not children or direct relatives) must either be the relative of an EU national (who is the sponsor) or, if they are the relative of a non-EU national who is the spouse of an EU national, the relationship must have been in place prior to January 2017. In addition, the dependent relative must also hold a “relevant document” (i.e. a document issued under the EEA Regulations prior to Appendix EU). This means that dependent relatives who have not already received a document under EEA Regulations, or relationships with non-EU spouses which only exist post-January 2017, will not fall within Appendix EU and will need to satisfy Section DR of Appendix FM of the Immigration Rules, which has been widely criticised for being unduly harsh.
For ILR applicants who already have Permanent Residence/ILR/ILE documents, or those who have completed five years’ residence, “no supervening event” must have occurred since the document was granted or the five year period completed. This is defined in Annex 1 as an applicant having been absent from the UK for five consecutive years or being the subject of a deportation or exclusion order (unless it has been set aside). In addition, Permanent Residence documents must have been issued within the last ten years in order to be valid.
The continuous qualifying period (of five years) is defined as residence in the UK with no more than six months’ absence in total in any 12 month period (unless for an important reason such as pregnancy, childbirth, serious illness, study, vocational training, an overseas posting or military service. There are also provisions relating to imprisonment and deportation orders). This is in line with Regulation 3 of the EEA Regulations.
An historical period of five years’ continuous residence is permitted for an ILR application, so long as the applicant has not been absent from the UK for five years continuously since. Once ILR has been granted, a period of five years’ continuous absence will result in the status being lost. However, the Government website states “How long you can live outside the UK is still subject to approval by Parliament”.
Part 9 of the Immigration Rules (general grounds for refusal) does not apply to applicants under Appendix EU, except paragraph 323(ii) which relates to curtailment of leave when an individual ceases to meet the requirements of the Rules under which the leave was granted. This could prove problematic for children who turn 21 or where a durable partner relationship ends and LTR was granted on this basis.
Paragraph EU6 requires that caseworkers refuse an application if the applicant does not meet the requirements for either ILR or LTR, and no discretion is allowed where an applicant has a deportation or exclusion order which must result in a refusal (EU15). The inclusion of the ability to refuse an application because of a “misuse of rights” (EU15(c)) suggests that refusals could be based on a lower threshold than the public policy threshold currently required for deportation and exclusion orders.
Refusal of an application is discretionary where the caseworker believes “…false or misleading information, representations or documents have been submitted…” and is “…material to the decision whether or not to grant…” either ILR or LTR (EU16). This discretion must be applied “proportionately” but as yet there is no indication of how caseworkers will apply this. There also does not appear to be any provision for an appeals or administrative review process.
The Guidance sets out the procedure for applications and how the criteria of Appendix EU will be applied by caseworkers, although the detail is somewhat limited. Anything out of the ordinary, (i.e. adopted children, children aged 21 or over who do not receive financial support from their parent(s), durable partners, etc), will be considered on a case-by-case basis. Many may need to be referred to a senior caseworker who may discuss the application with the European Migration Policy team.
Automated checks will be carried out using applicants’ National Insurance numbers, which is useful for workers and the self-employed, but does not help children, students, self-sufficient people, spouses or dependent relatives who don’t work, or anyone that does not have a National Insurance number. It is expected that records will be included from the Department of Work and Pensions for future automated checks when the Scheme is fully rolled out. In practice, a large proportion of applicants may need to provide additional documentation to prove their residence.
The Guidance indicates that the Home Office intends to deal swiftly with the majority of straightforward worker/self-employed applications but that most other applications may be considered more complex.
As set out in the draft Withdrawal Agreement, applicants are permitted to submit electronic copies of all evidence with their applications. However, caseworkers may request the originals if the authenticity of the document is doubted.
Acceptable identity documents include passports, ID cards, Biometrics Residence Permits (“BRPs”) and EEA Residence Cards. Evidence of relationship will be required for non-EU national applicants relying on an EU family member’s residence (including Marriage/Civil Partnership Certificates, Birth Certificates, evidence of two years’ cohabitation and joint finances (for durable partners), Adoption paperwork, etc), as will evidence of the EU national’s identity and nationality (as per the above identity documents). Where an individual cannot produce one of these documents “due to circumstances beyond their control or due to compelling practical or compassionate reasons”, caseworkers have discretion to accept alternative evidence.
All applicants will be asked to make self-declarations on the application form that they have not been absent from the UK for more than two/five years (as relevant) and that they do not have any criminal convictions, although these declarations will be checked during the caseworking process.
To evidence residence, in the first instance, the results of the automated checks will be used to confirm how long an individual has been resident in the UK. If those checks do not confirm the length of residence, or if the applicant disagrees with the outcome of those checks, Annex A of the Guidance sets out the additional evidence that an applicant can submit to prove residence (such as council tax bills, P60s/P45s, bank statements, employers’ letter, school invoices/letters, care-home letters/invoices, University letters, mortgage statements, tenancy agreements, etc). Applicants who already hold a Permanent Residence document (together with their family members) will not have to prove their residence in the UK.
To evidence dependency, financial documents such as bank statements and money transfers are acceptable. For children aged 21 and over the acceptable evidence is wide, including financial, medical or other documentary evidence to show parental support.
For applicants relying on retained rights, including a deceased EU national and an EU national who has ceased activity through workplace illness or retirement, the Guidance suggests a wide range of evidence to show the criteria are met. This includes – as applicable – pension statements, HMRC forms, letters from employers, payslips, letter from a hospital consultant, weekly travel tickets, utility bills, death certificate and identity documents.
The Guidance repeatedly states that applicants are to be given a “reasonable opportunity” to provide additional evidence where required, and caseworkers are encouraged to work with applicants in order to obtain evidence which is available, if not specified in the Guidance or Annex A.
The application procedure is designed to be straightforward, with applications submitted online via computer, tablet or smart phone (although reports suggest there have been difficulties getting this to work with iPhones).
1. Applicants will provide their personal details and upload scanned copies of their identity document. A passport-style photograph of the applicant must also be uploaded and this can be taken using a camera-phone.
2. If the applicant has been a worker or self-employed, they will enter their National Insurance number and the Home Office will conduct automated checks instantly.
3. The applicant makes the self-declaration in relation to absences and criminal checks.
4. The applicant will be informed on the screen whether they are eligible for ILR or LTR (pending evidence of any relationships or additional checks required). If the applicant wishes to accept the decision on screen, they can do so, and if they do not (for example if the decision is for LTR but the applicant believes they are eligible for ILR), they will be told what additional documents will be required (such as to evidence relationship or residence).
Processing times for applications under Appendix EU have not been formalised, although the Home Office have indicated they hope it will take a few days. Given that EU nationals will not be sent a separate document but will have their status confirmed electronically (non-EU nationals will receive a BRP), this should certainly speed things up, but given the high numbers expected to apply it is difficult to know for certain how long these applications will take. There have also been reports that applications will be processed on an alphabetical basis.
The deadline for applications is end June 2021, according to the Government website “Settled and pre-settled status for EU citizens and their families”, although the website also states that obtaining ILR or LTR under the Scheme enables them to “…live and work in the UK after 31 December 2020”. It also confirms that existing Permanent Residence documents will no longer be valid after December 2020, which raises the question of what right to work documents will be acceptable between January – June 2021.
The Guidance appears to suggest a general assumption of approval, with the acceptable evidence being quite widely worded and encouragement for caseworkers to consider anything which an applicant might present as evidence. It would appear that refusals are intended to be the exception rather than the rule. However, further guidance on refusals is to be published in due course.
As has been repeatedly said, and as Dominic Raab reminded Parliament on 24 July 2018, “nothing is agreed until everything is agreed”. Despite several key topics having been agreed between the UK and the EU on i.e. the financial settlement, an implementation period and citizens’ rights, none of those agreements will have any effect if the overall final deal is not agreed in its entirety when put to the EU27 countries.
Following significant public pressure, the Government is publishing a plethora of technical notices on what businesses and individuals should expect in a “no deal” scenario. Mr Raab said on 23 August 2018 that the intention is for the UK to take unilateral steps to continue operating in line with current laws and regulations, and hope that the EU reciprocates, but he admitted that “…we can’t guarantee it”. Indeed, in July, Mr Raab admitted that we still do not know what each Member State plans in relation to UK citizens’ rights. With no technical notice as yet published on EU citizens’ rights (at the time of writing), it is not certain whether Appendix EU will continue to have validity in a no-deal situation although given its implementation during the current test phase it is hard to see how the Government can withdraw it in the event of no final agreement. Alternatively, the Government could simply allow the EEA Regulations to continue to have effect.
The main risk with a ‘no deal’ situation is that the Government will then be able to adjust EU citizens’ rights, for those resident here or those arriving, during the implementation phase because it will not be bound by the Withdrawal Agreement.
Currently, EU nationals (and their family members) are required to hold Permanent Residence for 12 months before applying for naturalisation as a British citizen. It is not clear whether those EU nationals who obtain Permanent Residence before March 2019 can continue to use a Permanent Residence document issued under the EEA Regulations for a naturalisation application before December 2020, or whether they will be obliged to apply for ILR under the Scheme first. It would be logical for the Nationality Department to continue accepting EEA Permanent Residence documents as well as EU Settled Status during the transition phase to December 2020, but this is not yet confirmed.
It has been confirmed that where an individual has ILR, any children born in the UK after the grant of that status will be British automatically.
How the Scheme will work in practice remains to be seen for the majority of the country, with no feedback as yet from the test phase applicants. The guidance suggests an approach assuming the grant of ILR or LTR, with refusals an exceptional circumstance, but with no final Brexit deal agreed, and little clarity on how complex applications will be caseworked, there continues to be uncertainty and frustration amongst many EU national clients.
ILLUSTRATIONS AND CASE STUDIES
Case studies provided by the Home Office, UK Visas and Immigration – www.gov.uk
Case Study 1
Miss A has applied on the basis of having permanent residence and has supplied her valid permanent residence card. There is no evidence to suggest that her permanent residence has lapsed. The application should be considered eligible for ILR.
Case Study 2
Mrs B applies and states that she has permanent residence, but information indicates that when she applied for her permanent residence document to be renewed her application was refused as she had been absent from the UK for more than 2 years since it was issued. Evidence provided confirmed that Mrs B was out of the UK for 3 continuous years and this does not therefore constitute a supervening event. The application should be considered eligible for ILR.
Case Study 3
Mr C is the non-EU spouse of an EU citizen, and has applied on the basis of having ILR in the UK. He has provided his expired passport which contains a valid stamp confirming that he has been granted ILR along with evidence of his marriage to an EU citizen and there is no evidence to suggest that he has been absent from the UK for more than 2 consecutive years. The application should be considered eligible for ILR.
Case Study 4
Dr D, an EU citizen, claims to have been granted ILR but states that she has lost the relevant document. Home Office records confirm that Dr D was granted ILR as claimed and there is no evidence to suggest this has lapsed or been revoked or invalidated. The application should be considered eligible for ILR.
Case Study 5
Professor E has applied on the basis of being a French citizen who has been living in the UK continuously for the past 8 years. Automated checks from HMRC confirm that he has been working in the UK for 7 years. The data runs up to the month before his application so it is not possible for him to have been absent for more than 5 consecutive years since then, and there is no evidence of any other supervening event. The application should be considered eligible for ILR.
Case Study 6
Mrs F has applied on the basis of being the Brazilian spouse of her Italian husband. The relationship and relevant identities are confirmed. She claims that both she and her husband have been resident in the UK since 2012. Home Office records show her husband was issued with a document certifying permanent residence in 2017 and automated checks show that Mrs F was employed from 2013-2015 only. Mrs F provides council tax bills for the period 2015-2018 dated and addressed to both her and her husband. The application should be considered eligible for ILR.
Case Study 7
Mr G, a 68 year old French citizen, has applied on the basis of being a retired worker since 2016. Automated checks from HMRC show that he was in employment in the UK for 3 years before retiring, and statements provided confirm he has been in receipt of a pension since 2016. The application should be considered eligible for ILR.
Case Study 8
Ms H, a German citizen, has been living in the UK since 2014. She worked from 2014-2017 before she was injured in an industrial accident and was unable to continue work as a result. A letter from her hospital consultant confirms she is no longer able to work in any capacity. Automated checks from HMRC confirm her period of work as claimed and she has confirmed via self-declaration that she has not left the UK since, and there is no evidence to suggest otherwise. The application should be considered eligible for ILR.
Case Study 9
Professor J, a Greek citizen, has applied on the basis of being a worker with a retained place of residence in the UK. She claims that she has lived in the UK from 2012-2016 and has since been working in the Czech Republic whilst returning to her house in the UK at least once a week. The automated checks from HMRC show that she was employed in the UK for the period claimed, and she has provided payslips and bank statements evidencing her employment in the Czech Republic.
Professor J has also provided utility bills for her address in the UK from 2016 to the time of application and flight history showing that she returns to the UK every weekend. The application should be considered eligible for ILR.
Case Study 10
Mrs K, a 60 year old Chinese citizen, has applied on the basis of being the spouse of an EU citizen who ceased activity in 2015. She has provided her marriage certificate and husband’s passport, and documents that show that her husband was in employment for 3 years before retiring and since 2015 he has been in receipt of a pension. A self-declaration that neither the applicant or her husband have been outside the UK for a continuous period is not necessary as Mrs K only became a person who ceased activity 3 years ago. No other evidence of a supervening event is present. The application should be considered eligible for ILR.
Case Study 11
Mr L, a Mexican citizen, has applied at the same time as his wife, a Swedish citizen, who has ceased activity. A marriage certificate has been provided to confirm relationship and casework action on Mrs L’s application has resulted in a grant of ILR as an EU citizen who has ceased activity. A self-declaration confirms neither Mr or Mrs L have been absent from the UK since 2016. The application should be considered eligible for ILR.
Case Study 12
Mrs M is a Sri Lankan citizen, who was married to a Danish citizen. Both were employed together in the UK for 10 years and she claims they continuously resided together in the UK since they were married 13 years ago. After a short illness, Mr M passed away in 2016. Mrs M has provided a marriage certificate and Mr M’s passport and death certificate. Mrs M has also provided Mr M’s payslips which confirm that he was in employment immediately before his death in 2016. Mrs M has also confirmed that she has not left the UK other than for short holidays. The application should be considered eligible for ILR.
Case Study 13
Dr N is a Brazilian citizen who was married to Mr N, a French citizen in the UK who had been working for 6 years. Mr N has died after contracting an occupational disease; this is confirmed by both his death certificate and hospital consultant letter. Dr N has provided a marriage certificate and Mr N’s French ID card. P60s confirm Mr N’s employment as claimed and Dr N has declared that she has only left the UK for short holidays. The application should be considered eligible for ILR.
Case Study 14
Miss O, a 12 year old Argentinean citizen, has applied as the daughter of her Portuguese mother, Mrs O. She has provided her birth certificate which confirms her relationship to Mrs O and Mrs O’s reference number confirming a grant of ILR under the scheme, which is confirmed by Home Office records. The application should be considered eligible for ILR.
Case Study 15
Mr P, a 16 year old Ecuadorian citizen, has applied as the son of Miss P, who is in a civil partnership with Miss Q, a Latvian citizen. A birth certificate and civil partnership certificate have been produced to confirm both relationships are as claimed, and Miss Q’s passport confirms that she is a Latvian national. Reference numbers provided confirm both Miss P and Miss Q have been granted ILR under the scheme. The application should be considered eligible for ILR.
With thanks to Victoria Welsh for her work on this legal guide.
This information sheet is for guidance only and does not constitute formal legal advice. EU nationals and their family members, as well as their employers, who are affected by the provisions referred to should seek specific advice pertinent to individual circumstances.