Brexit: What EU citizens living in the UK need to know

The UK left the EU on Friday 31 January 2020.  Free movement ended at 11pm on 31 December 2020.

If you are an EU citizen and you were resident in the UK on or before 31 December 2020, you should have already applied to register under the EU Settlement Scheme for pre-settled or settled status before the 30 June 2021 deadline. 

The same goes for other European Economic Area nationals (nationals of Norway, Iceland and Liechtenstein) and Swiss nationals. 

Although the deadline has passed, there are many issues that EU citizens should consider.

What is the EU Settlement Scheme?

If you were resident in the UK on or before 31 December 2020, you and your family members living in the UK – including children – must apply to the EU Settlement Scheme.  Applications should have been submitted on or before 30 June 2021 but it may not be too late apply.

You don’t have to apply if you are an Irish citizen or if you already have indefinite leave to remain.

EU citizens who have lived in the UK continuously for five years are eligible for settled status under the EU Settlement Scheme. You don’t have to have lived in the UK for the last five years. Any five-year period is fine as long as you have travelled back to the UK at least once every five years since the end of the five-year period you are relying on. Settled status is a special type of indefinite leave to remain which gives the same rights as permanent residence under EU law.

EU citizens who have lived in the UK for less than five years are eligible for pre-settled status. This is a temporary status which can be converted into settled status after five years. 

You do not need to show that you have been exercising a right of residence under EU law, which can sometimes be complicated. Actual residence is enough.

 

I applied to the EU settlement scheme before the deadline but my application is still pending.  Have I lost my right to live in the UK?

No.  If you submitted an application before the deadline you can continue to work, study, drive, access NHS services and travel freely in and out of the UK while your application remains pending.

 

I haven't yet applied to the EU Settlement Scheme.  Can I apply late or have I lost my right to live in the UK?

The deadline to apply to the EU Settlement Scheme was 30 June 2021. If you have not applied to the EU Settlement Scheme you should do so as soon as possible. 

The Home Office is accepting late applications from individuals with ‘reasonable grounds’ for having missed the deadline.

The Home Office guidance contains a detailed, non-exhaustive list of examples about what might constitute a ‘reasonable ground’ for having missed the deadline. These include a broad range of reasons, including:  for children in care and care leavers, individuals who lack mental and physical capacity, and victims of domestic violence and modern slavery.

There is also a wider provision which allows applicants who have missed the deadline to apply late as a result of “other compelling practical or compassionate reasons”. Practical considerations can include something as simple as not having access to the internet. But this also includes situations where applicants were unaware of the requirement to apply because “they have lived in the UK for a significant period of time, and having done so, did not realise they must still secure status under the EUSS”.

Not only are these provisions wide ranging, the guidance also contains a specific requirement for applicants to be given the “benefit of the doubt”and for the Home Office to adopt a “flexible and pragmatic approach” when considering whether there are reasonable grounds for an applicant’s failure to meet the deadline.

Provided one of these wide ranging ‘reasonable grounds’ can be established, the application should be approved, despite being submitted late.  This flexibility will not last forever and the latest guidance should be consulted.

The Home Office has indicated that where Immigration Enforcement becomes aware of someone who has not applied by the deadline (including where someone is referred to them by the police or a local authority), they will be given written notice to apply to the EU Settlement Scheme within 28 days.

 

What happens if I haven’t applied by the deadline and my employer finds out?

Employers are not required to do retrospective right to work checks on their employees.  But they can do so or could find out in a different way that an employee has not applied to the EU Settlement Scheme. 

If an employer discovers an employee has not submitted an EU Settlement Scheme application before the deadline, they should tell the employee to apply within 28 days.  So long as the application is submitted within that timeframe and the employer gets confirmation of this from the Home Office’s Employer Checking Service the employment can continue pending the decision.  This transitional measure is in place until 31 December 2021.

 

How do I prove my immigration status?

 

As an EU, EEA or Swiss citizen granted status under the EU Settlement Scheme, you will prove your status in the UK digitally to employers and others by using the View and Prove service

If you have an outstanding application to the EU Settlement Scheme you will have received an acknowledgment once your application was received.  The email will explain how you can prove your rights until your application is validated.

Once your application is validated, you will receive a certificate of application, which you can use to prove your rights. If you have been notified that you have a digital certificate of application, you are able to use the View and Prove service.  If you have submitted an application after the 30 June 2021 EU Settlement Scheme deadline your employer should be able to use your certificate of application and the Employer Checking Service to confirm your right to work.  Landlords can use the Landlord’s Checking Service for right to rent purposes.

 

Will I have difficulties travelling in and out of the UK?

As an EU, EEA or Swiss citizen you can continue to use the electronic gates (eGates). 

There are reports of EU, EEA and Swiss nationals experiencing significant difficulties entering the UK.  This has been an issue not only for those who are still awaiting a decision on their application, but also for those who have already been granted settled or pre-settled status.

The Home Office recently announced that it will be introducing new systems at all ports, to enable Border Force officials to check whether an individual has made an application to the EU Settlement Scheme.  If you are concerned about travelling to and from the UK, we advise that you have available on your phone your Certificate of Application.  Alternatively you can use the email you got acknowledging the application was submitted.

From 1 October 2021, the UK no longer recognises EU, EEA and Swiss national identity cards for travel and entry to the UK, so you will need a passport to travel to the UK. This does not apply to those EU, EEA and Swiss nationals with status such as under the EU Settlement Scheme and frontier workers who will still be able to use national identity cards for travel until at least 31 December 2025.

More information can be found here.

 

How do I update the Home Office of changes to my personal details?

It is important that you keep your personal details on your UKVI account up to date, and that you inform the Home Office if your passport changes, so you can continue to access your account and to avoid any unnecessary delays at the UK border.

You can update your details through the update your UK Visas and Immigration account details service or by using the ‘update details’ function in the View and Prove service.

You will need to update your details if there are changes to:

  • your ID document, passport or travel document
  • your account sign in details (email address and phone number)
  • your name or nationality

If you have used the ‘update details’ service to update the details of your ID document or sign in details since you last applied for a UKVI account, you will need to use these updated details to access your account.

You can also use the ‘update details’ service to tell the Home Office about a change to your address or contact details (if these are different to your sign in details).

 

What if I am or have been absent from the UK because of coronavirus?

EU citizens who apply to the EU Settlement Scheme for pre-settled status need to apply for settled status after 5 years in the UK. Pre-settled status is non-extendable and so it is important that the residence requirements are met in order to qualify for settled status. Otherwise it will be necessary to switch into a different UK immigration category, such as Skilled Worker
 
Those with pre-settled status should not be absent for more than 6 months in any 12 month period. A single period of absence of up to 12 months is permitted for an “important” reason including pregnancy/childbirth, serious illness, study, vocational training or an overseas posting.  
 
The guidance includes that you can have been absent from the UK for example because “there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas.” 
 
It also goes on to say “this means you can rely on any coronavirus related reason (including where you chose to leave or remain outside the UK because of the pandemic) as being an ‘important reason’ permitting an absence of up to 12 months. In these circumstances, you will not have broken your continuous qualifying period of residence.”

The guidance also covers other scenarios where someone with pre-settled status has been absent from the UK because of coronavirus.  From 6 October 2021 the guidance is also reflected in the rules.

 

Will my family outside the UK be able to join me in the future?

Your existing close family members living outside the UK may be able to join you in the UK. The family relationship must have existed before the end of the transition period on 31 December 2020. That relationship could be the marriage or civil partnership.  If you are unmarried, you should normally have been living together for at least the last two years before 31 December 2020.  From 6 October 2021, those in the UK as a visitor can apply as a joining family member.

Future family members – for instance someone you marry after the transition period – will need to apply under the UK Immigration Rules, such as under Appendix FM. This does not apply to children. Your children will be able to join you in the UK under EU Settlement Scheme rules even if they are born outside the UK after the transition period.

 

Should I become a British citizen?

Settled status gives you almost the same rights as a British citizen. You can live in the UK permanently. You can work, study and use the NHS and other public services in the same way as a British citizen living in the UK. 

But you can lose settled status – for instance if you leave the UK and don’t come back for more than five years, or if you commit a serious crime. And settled status does not give you the right to vote in the UK. For these reasons it’s worth considering applying to become a British citizen. 

You can apply to become a British citizen after you have held settled status for one year (or straightaway if you are married to a British citizen).

Before applying, check whether your country of origin permits dual nationality.

 

What about my children?

If you have children born in the UK they may already be British citizens.

Children born in the UK on or after 30 April 2006 are automatically British if at least one of their parents was granted settled status or completed the five-year qualifying period for permanent residence before they were born.

If your child was born on or before 30 June 2021 and one parent is later granted settled status you can apply to register your child as a British citizen.

If your child is born on or after 1 July 2021, one parent qualified for settled status on or before 30 June 2021 and is later granted settled status after the birth your child will be automatically British and can apply for a British passport on that basis.

There are different rules for children born before 30 April 2006, and different rules again for children born before 2 October 2000.

 

What if I have moved to the UK after 31 December 2020?

Unless you were living in the UK on or before 31 December 2020 you will need to get a visa before moving to the UK.

 

Further information on the rights of EU citizens living in the UK and of British citizens living in the EU

To find out more about your right of residence in the UK, please contact a member of our immigration team.

Also see our FAQs on British citizens travelling to the EU for business.

Examples of our work

  • Advising EU citizens on the preservation of their pre-settled and settled status.
  • Advising on pre-settled and settled status applications from outside the UK.
  • Advising on the eligibility of family members to join EU citizens in the UK, including after 1 January 2021.
  • Advising family members of dual British and EU citizens under the Lounes principle.
  • Assisting with applications for family members arriving back in the UK with their non-EU citizen family members under the Surinder Singh principle.
  • Advising in relation to eligibility to naturalise as a British citizen where comprehensive sickness insurance has not been held.
  • Advising on retained rights of residence for family members of EU citizens.

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