Brexit – take back control over your immigration status

1 March 2019

As the UK hurtles ever closer to a possible cliff edge and the spectre of ‘no deal’ Brexit looms large in everyone’s minds, it is easy to feel we have no control over the direction we are heading in and the impact that may have on our lives.

Those individuals who have obtained the right to live in the UK by virtue of their EU citizenship or their family relationship to an EU citizen can, however, take back control over their immigration status and rest a little easier in the weeks to come about at least one aspect of this quagmire.

This is true of both EU citizens already resident in the UK and those who have been considering a move.

What if I am already in the UK?

The British Government has introduced the EU Settlement Scheme to enable EU Citizens to obtain a status which will exist under UK law once we have left the EU. It is split into settled status, broadly equivalent to indefinite leave to remain or permanent residence, for those who have resided in the UK for five years and pre settled status for those who have not yet completed five years of residence to enable them to reach that point.

If you are an EU citizen with a valid EU passport or the family member of an EU citizen and you have a biometric residence card, you can now submit a digital application to apply for this immigration status. The application is open to any dual US/EU citizen living in the UK in any capacity. If you have not yet resided in the UK for five years, you will be granted pre-settled status for up to five years. After you have resided in the UK for five years, you will be eligible to apply for settled status, subject to meeting the absence requirements, criminal and security checks. If you have already resided in the UK for at least five years, then you can apply under the scheme for settled status immediately.

It is also worth considering applying for a document confirming your right of residence in the UK under EU law. If you are an EEA national and have completed a continuous period of five years in the UK as someone who is employed, self-employed, studying or self-sufficient you can apply for a document certifying permanent residence. The date on which you completed the five-year period doesn't matter as long as you have not been outside the UK for a continuous period of more than two years after completing the five-year period.

The most immediate reasons why you might want to get a permanent residence document are as follows –

First, if you want to become a British citizen you must have either a permanent residence document or settled status. If you are granted settled status you then have to wait another year before you can apply for British citizenship (unless you are married to a British citizen) but if you have a permanent residence document you can effectively get it backdated to the date when you completed the five-year qualifying period. Becoming a British citizen will give you ultimate control over your immigration status as you will no longer need to worry about immigration (and will give you more control over the future of the UK by giving you a vote in future elections and referendums!).

Second, if have a child who was born in the UK after you completed the five-year qualifying period you could potentially rely on a backdated permanent residence document to get a British passport for your child. Different rules apply here depending on the child’s date of birth so it is important to get advice on this as soon as possible to ensure your child’s status is clear and secure.

Unfortunately, not everyone who has lived in the UK for five years qualifies for a permanent residence document – especially students and self-sufficient people who don’t have private health insurance.

Deal or no deal?

If the UK and the EU ratify the Withdrawal agreement, there will be a transition period until 31 December 2020 during which EU law will continue to apply in the UK. Under this agreement, EU Citizens arriving by 31 December 2020 will be able to apply for pre-settled or settled status by 30 June 2021.

If we leave the EU on 29 March 2019 without a deal, there will be no EU wide implementation period but in their planning the UK has indicated a unilateral implementation period until 31 December 2020 to allow EU citizens time to apply for the necessary status.

On 6 December 2018, the Government published a policy paper confirming the EU Settlement Scheme will be fully implemented even in the event of a no deal Brexit but EU Citizens will need to have been living in the UK by 29 March 2019 to qualify and any applications will need to be submitted by 31 December 2020.

What if I am planning to travel to the UK after 29 March 2019?

As mentioned above, in the event of a deal, EU citizens and their family members will be able to freely travel to the UK until 31 December 2020 and will still be able to secure settled status after five years.

However in a no deal scenario, the long term position is less clear.

Without a withdrawal agreement, free movement will end on 29 March 2019. As part of the unilateral transition period the UK has agreed to implement, EEA nationals arriving between 30 March 2019 and 31 December 2020 will be subject to the following –

  • They will be admitted to the UK for three months with permission to work or study;
  • If they wish to stay for longer than three months, they must apply for a new status called European Temporary Leave to Remain. This will be valid for 36 months;
  • After 36 months, they will need to apply for further leave to remain under the new immigration system which we expect to be in place from 1 January 2021;
  • If they cannot qualify for leave to remain under this new system, they will need to leave the UK.

If an EEA national has a non-EEA spouse or partner and dependant children under 18, they will be able to bring them to the UK under this scheme but they will need to apply in advance for a family permit.

As the position is so uncertain in a no deal Brexit, those considering relocating to the UK on the basis of EU citizenship, may wish to consider the timing of their relocation. If it is possible to establish yourself in the UK by 29 March 2019, this is likely to give you a lot more certainty and security going forward.

That’s a lot to take in!

It certainly is and after almost three years of uncertainty, it is completely understandable that EU citizens and their family members have lost trust in the UK immigration system to offer them the security they previously felt. However, with the fate of Brexit less clear than ever, it is important that those in the UK on the basis of EU law ensure they at least have clarity about their own status and, where possible, take the steps they can to protect themselves going forward.

This blog was first published in The American magazine, March/April 2019 edition.

Further information

For further information on the issues raised in this blog post, please contact a member of our immigration team.

About the authors

Katie Newbury is a senior associate in the immigration team where she advises a broad range of clients. She has experience across a wide spectrum of UK immigration matters, with particular expertise in applications made under Tier 1 of the Points Based System and complex personal immigration matters.

Kim Vowden is a senior associate in the immigration team. He covers all areas of business immigration. He has extensive experience of advising companies in the finance, media and technology sectors.  He has a particular interest in European free movement law and in the implications of Brexit for EU citizens living in the UK, and for their employers. 

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