Immigration update: Brexit – further details of the EU Settlement Scheme announced

22 June 2018

On 21 June 2018 the government published a Statement of Intent outlining details of the new EU Settlement Scheme. Under the Scheme EU citizens and their family members resident in the UK before 31 December 2020 will be able to apply for UK immigration status. The new application will be rolled out in phases from late 2018 and will be subject to an initial private beta test phase commencing next month. The Scheme will be fully open by 30 March 2019.
 
The Scheme encompasses two new application types which will be added to the Immigration Rules:
  • a pre-settlement application where limited leave to remain will be granted for up to five years;
  • a settlement application where indefinite leave to remain (ILR) will be granted, once an applicant can demonstrate continuous residence in the UK for five years.
The main criteria for eligibility under the Scheme will be continuous residence in the UK, which means that applicants will not be required to show they meet all the requirements of the current free movement rules, such as any requirement to have held Comprehensive Sickness Insurance or generally to detail the exercise of specific rights (eg the right to work) under EU law.
 
What does continuous residence mean?
 
  • For those who have resided in the UK for less than five years, it means they must not have been absent from the UK for more than six months in any 12 month period. Up to 12 months' absence is permitted for exceptional reasons such us pregnancy, childbirth, ill health, study or vocational training;
  • For those who have resided in the UK for five years, they must not have been absent from the UK for five years or more, since completing the five year period;
  • EU nationals who are temporarily absent from the UK on 31 December 2020 will still be considered residents for the purposes of the Scheme, provided they can meet the continuous residence criteria.
Eligibility for ILR after less than five years 
 
Some people will be eligible for ILR after less than five years' residence, including:
  • Those who have worked in the UK for at least three years and subsequently left to work in another EU member state and have maintained a place of residence in the UK, to which they return at least once a week;
  • Those who have worked prior to retirement for at least 12 months and have resided in the UK for at least the last three years;
  • Those who have stopped work due to incapacity, having been continuously resident for more than the previous two years;
  • Bereaved family members of an EU citizen who had been resident in the UK as a worker or self employed at the time of death, provided the EU citizen was continuously resident  in the UK for at least two years before their death (unless their death was the result of a work  related incident) and the family member was resident in the UK with the EU citizen, immediately before their death and is continuously resident in the UK;
  • Children under 21 who are continuously resident in the UK, provided their EU parent is being granted ILR.
Requirements for a valid application under the Scheme
 
  • Must be made in the UK using the required digital application process;
  • Payment of a fee of £65 or £32.50 for children under 16;
  • Proof of identity and nationality:  EU citizens must provide a valid passport or national identity document and non-EU family members must provide either a valid passport, a biometric residence card or Biometric Residence Permit (BRP). Alternative evidence is acceptable in compelling or compassionate circumstances;
  • Enrolment of facial image via the uploading of a new passport photo (not previously used in a passport). Non-EU family members who do not have a BRP will need to attend an application centre in the UK to enrol their fingerprints and facial image.
How will the application process work?
 
  • There will be an online application form which will be short, simple and user-friendly;
  • Where possible, the application process will help the applicant establish continuous residence,  and whether or not it amounts to five years,  by using data held by HMRC and later, by the DWP;
  • If the applicant can demonstrate five years' continuous residence, then, subject to criminal and security checks, the applicant will be granted ILR;
  • For those who have previously been issued with a document certifying permanent residence (PR), they can exchange this free of charge for ILR under the Scheme, subject only to criminal and security checks and to confirm their status has not lapsed due to absence from the UK for more than five years;
  • Where automatic checks do not indicate the EU citizen has been continuously resident for five years, or has been continuously resident for less than five years, applicants can upload documentary evidence of their continuous residence (or evidence they are in one of the categories eligible for ILR with less than five years continuous residence). Where appropriate, they will be granted ILR, subject to criminal and security checks;
  • Otherwise, applicants will be granted limited leave to remain for up to five years;
  • Non-EU family members not previously issued with PR, will also have access to the automated process and, where necessary, documents can be uploaded by the applicant. They will also need evidence of their relationship to the EU family member for the  relevant period and evidence of that person’s continuous residence in the UK during that period;
  • Evidence of status will be given in digital form as no physical document will be issued. Non-EU family members will have both a digital means of evidencing their status, plus a BRP, where they do not already hold a BRP;
  • EU citizens granted either limited leave to remain or ILR will be able to be joined by close family members resident overseas at the end of the transitional period (31 December 2020), if the relationship existed at that date and it continues when that person wishes to come to the UK.
We will publish further updates on developments with regard to the roll out of the Scheme. In the meantime, if you still wish to apply for PR under the EU provisions, you may continue to do so.

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