By John Karamarias∗
On 31st January 2020 at 11pm, the United Kingdom left the European Union and entered a transition period, due to end on 31st December 2020. During this transition period, Europeans can continue to enjoy their freedom of movement rights in the UK as they did before Brexit.
That said, EU citizens and their family members who wish to remain living in the UK after 31st December 2020 will need to apply for an immigration status to remain legally resident. The Home Office has set up a special application scheme called the EU Settlement Scheme to process all the applications. EU citizens and their family members who can prove they have lived in the UK for five years or more will be granted settled status, and those living in the UK for less than five years will be granted pre-settled status.
Applications can be simple and straightforward but become more complex where the applicant is requested by the Home Office to submit additional documents to prove residence in the UK.
The scheme also covers citizens of Switzerland, Iceland, Norway, and Liechtenstein, living in the UK.
The basic terms of the Settlement Scheme, which was introduced in January 2019 by Theresa May, (the then Prime Minister), and came into force on 30th March 2019, are:
- EU citizens and any of their non-EU family members who arrived and settled in the UK, before 31st December 2020, and have beencontinuously resident in the UK for five years by the time of their application, will be eligible for settled status enabling them to stay indefinitely.
- EU citizens and their family members who enter the UK before 31st December 2020, but will not yet have been continuously residing and living in this country for five years by the time of their application, will be eligible and will be entitled to apply for “pre-settled status”. This allows them to stay in the UK until they have reached the five-year threshold. They can then also apply for settled status.
- EU citizens and their family members with settled status or pre-settled status will enjoy the same access as they currently do, to NHS healthcare and services, pensions and other benefits in the UK.
- Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will be able to join their EU citizen sponsor here after 31 December 2020, so long as the relationship existed on that date. Future children are also protected.
A vital feature of this (pre-settled or settled status) arrangement for the three million, approximately, EU citizens living in the UK is that they are not automatically protected by it, but they must make an online application to the Home Office to obtain it, instead. Failing to apply within the prescribed deadline, (it is the 30th June 2021, or for practical reasons, by 31st December 2020), essentially means that the EU citizens will end up with no legal rights to live and work in this country.
The “Windrush” generation having recently gone through the traumatic experience of being undocumented, (despite the fact that at the period of time they were entering the UK, roughly from 1948 to 1972, they were entitled under the then, laws in force, as UK and Colonies citizens to enter the UK without any Immigration papers and enjoy exactly the same legal rights to the British citizens who were born, grown up and were living in the UK), can testify that in living in “compliant environment” UK, may well have serious implications for them, since a considerable number of them has recently encountered the issue of a deportation order from the Home Office.
Overview of the EU Settlement Scheme
The Settlement Scheme involves an identity check and an online form to be submitted by the Applicant to the Home Office.
The identity check can be done in several ways including:
- Using the “EU Exit: ID document check” application; this is available to EU nationals who have a biometric passport or ID and non-EU nationals who have a Biometric Residence Card issued to them under the EEA Regulations. These EU Applicants can make their application for pre-settled or settled status, by using the ID checking application works on their own Android (of version 6.0 and above), or, if they do not possess an Android, on their iPhone (version 7), or on most up-to-date models with iOS 13.2.
- Attending a document scanner location (these locations are situated in various places, such as Council premises, Public Libraries, Registration Offices in various areas in London as well as in various cities and towns all over the UK); these facilities are available to EU citizens who have a biometric passport and non-EU citizens who have a Biometric Residence Card issued to them under the EEA Regulations and who will apply for pre-settled or settled status as the family members, close or extended of EU citizens who are living in the UK and are on pre-settled or settled status. The fee for having the information to be provided to the Home Office scanned, in the context of the pre-settled or settled status application, varies depending on the location, and is, between £14 and £21.
- Sending the Identity Document, or passport to the Home Office by post, this is available to all EU and non-EU Applicants, (the latter being family members, close or extended, of the EU Applicants); but is most likely to be used by those who do not have access to the Application through or a document scanner location.
- Attending an appointment at one of the SopraSteria UK Visa Centres, situated in various places in the UK, (eg, Croydon, Birmingham, Manchester, etc…), and Citizenship Application Services (UKVCAS), set up throughout the UK since December 2018; these centres are suitable for those non-EU nationals, (family members of EU nationals living in the UK on pre-settled or settled status, or applying together with their non-EU family members for any of the above statuses), who do not have a Biometric Residence Card issued to them under the EEA Regulations legal framework, with a chip, (indicated by a rectangular golden symbol in the centre of the said Card).
- One who does not have an Android or an iPhone, or does not know how to submit the Application Form, online, he can get advice online or face to face through the Assisted Digital service. However, he will have already to have scanned his Identity Card. In case the Applicant does not have an Android phone, he will first need to attend an appointment at one of the locations above, and then book an appointment to see the staff of the Assisted Digital Service which will help him undergo with the biometric test, (fingerprints and photograph of the face) and subsequently proceed with the application, itself.
The system has been designed to be much easier and more functional than a typical immigration application. The existing application for “permanent residence” , the so-called EEA(PR) application, still in use but due to be scrapped by 31st December 2020, is notoriously consists of an 85-page form; moreover, detailed evidence must be provided of what the Applicant has been doing in the UK, in the ambit of exercising EU Treaty Rights, (either as a worker, or as a student, or as a self-employed or as a self-sufficient, or under some categories provided by the Immigration EEA Regulations).
On the other hand, applying for settled status is largely based on proving residence in the UK; furthermore, the application system has been streamlined. The system of the Home Office will check existing government databases for proof of residence, for example. Based on the evidence provided by these government databases, (for example, the Inland Revenue in relation to the Applicant’s workplace through the income taxes he is paying to the government, the City or Borough Council in relation to the Applicant’s address in the UK, as it becomes obvious through the Council Tax bill), the Home Office caseworkers will assess the information provided in the application in question and will subsequently make the final decision, (as to whether to approve or refuse the application, or ask the Applicant to provide some more documents, before they can make a decision, depending on the circumstances of each application).
If the Applicant fails to prove residence, or is rejected on flawed criminal record grounds, this practically means that the Applicant in question does not have any legal rights to live in the UK. But the Home Secretary has stated that “we will be looking to grant, not for reasons to refuse”. Of the millions of people who have applied to date, only a very small percentage of them have been refused, so far. (under the most recent data of the Home Office, of February 2020, nearly three, (3), million European citizens in the UK along with their non-EU family members have applied to the Home Office for pre-settled or settled status, and only, 300 out of them were refused, whilst 19,100 out of them have withdrawn their applications and 6,800 out of these applications were considered invalid and have to be submitted again, with, at least some fresh evidence.
When should the Applicant apply?
The direct answer to it, is that the EU citizens, (and/or their non-EU family members), will have to make an application before the deadline of 30th June 2021.
- New immigration requirements are due to be introduced for EU citizens, (as already provided by the new TIER 2 Home Office Guidance to be put in place for non-EU citizens very soon, in this year), but also to apply for EU citizens who will be entering and settling in the UK from 1st January 2021, imposing salary thresholds, (the salary threshold of £25,600.00 and some other thresholds, lower to that combined with some restrictive conditions), as criteria to meet in order to work and stay lawfully in the UK. This means that, from 1st January 2021 onwards, there will be two “categories” of EU citizens who will be residing in the UK; those who arrived before the end of the transition period, (from 1st February 2020 to 31st December 2020), and those who will enter the UK after 1st January 2021. Under these circumstances, those EU citizens who will be entering before the transition period, namely by 31st December 2020, must apply under the EU Settlement Scheme before 31 December 2020, in order to be granted pre-settled status; this will obtain a status that they will enable them to distinguish themselves from the “new cohort” of EU citizens, that will be entering the UK after 1st January 2021, (and will have to apply under the new TIER 2 scheme, subject to the conditions described above), with employers, banks, the NHS, landlords and other bodies which have to verify the exact immigration status of the EU citizen in question, before providing vital services.
- On the other hand, those who have not reached the five year residence mark, yet, but will have reached it by 30th June 2021 may choose to wait until the five-year anniversary of their residence in the UK to apply. If not, they will be granted pre-settled status first, and will, subsequently have to make a second application for settled status once they have reached the five-year mark.
- Non-EU (close or extended) family members of EU citizens whose current documents, (EU Residence Card obtained under the Immigration EEA Regulations), will expire before 31st December 2020 may also want to apply before the expiration of their current document. They may want to get a settled status document, (under the EU Settlement Scheme already in force since 31st March 2019), rather than renewing their existing documents, (under the Immigration EEA Regulations legal framework which is due to expire on 31st December 2020), to use it as proof of evidence like proving to employers, landlords and banks their right to live and work in the UK. Otherwise, non-EU family members will end up getting the old-style EU Residence Card, which is due to expire by 31st December 2020 and then, they will have to apply for a second time and switch onto settled status, so, it would be convenient for them to apply for settled status, directly, if they are eligible for it.
Documents to be provided
A] In case the Applicant is an EU citizen
The EU citizens will need to prove identity and nationality. Applicants can provide evidence of their identity and nationality by uploading a passport or valid national identity card digitally via the smartphone app. This will only work if the passport or the Identity card is a biometric document with a chip (indicated by a rectangular gold symbol that looks like a camera).
Those who do not have a biometric document may send their passport or Identity Card to the Home Office, by post, instead. The Identity Card will be returned to the Applicant “usually within three days after being received [by the Home Office]”, even before a decision on the pre-settled or settled status application has been made.
The Home Office can still accept alternative evidence of identity where an EU Applicant is unable to produce his passport or Identity card, but only, “due to circumstances beyond and above their control or to compelling practical or compassionate reasons”. (something, that will rarely happen with an application of an EU citizen).
The EU Applicants in question, will also need to “enrol their facial image”, namely to take a photo of themselves and forward it, (in case they apply online through their ANDROID or iPhone), or send it to the Home Office, (in case they have to send the paper documents, such as their passport or Identity Card which in such a case do not have the rectangular golden chip).
Residence in the UK
Under the relevant legal framework which came into force to implement the EU Settlement Scheme and thus, enable the EU citizens and their non-EU family members to apply for pre-settled or settled status, (the so-called Appendix EU), continuous residence simply means having lived, or living, in the UK. The definition of “qualifying period” under Annex 1 of Appendix EU makes no reference to “exercising Treaty Rights”, contrary to what was happening before the EU Settlement Scheme came into force, (on 30th March 2019), when, under the then, legal framework, (the Immigration EA Regulations 2006, as amended in 2016, which is due to go away by 31st December 2020, ) the EU citizens who were applying for Registration Card or Permanent Residence Card, (in case they could prove they were exercising EU Treaty Rights in the UK for at least 5 consecutive years), had to show that they had been working, (as employees or as self-employed), studying in the UK, (and were, in such a case on a private medical insurance), or, for example, were financially self-sufficient, holding at the same time, Comprehensive Health Insurance
In terms of evidence related to residence in the UK, the Applicant must simply inform the Home Office of their National Insurance Number in the UK. The Home Office will subsequently carry out automated checks of data held by Her Majesty’s Revenue and Customs (HMRC) and the Department for Work and Pensions (DWP). Those checks should show evidence of employment and receipt of benefits, which will automatically indicate residence in the UK.
If the checks indicate that the applicant has been continuously resident in the UK for a period of five years, they will be granted settled status.
On the other hand, not all the EU Applicants have data with HMRC or DWP (for example, those who have never worked or received benefits in the UK).
In those cases, the EU Applicant will then be able to upload documentary evidence of their continuous residence in the UK, still digitally. There is a useful list of documents which will treated by the Home Office as evidence of residence in the UK. It confirms that:
“This Annex provides non-exhaustive lists of the type of documentary evidence which the applicant will be able to provide. The guidance below is not prescriptive or definitive. Some applicants may lack documentary evidence in their own name for various reasons; you must work flexibly with applicants to help them evidence their continuous residence in the UK by the best means available to them”.
B] In case the Applicant (for pre-settled or settled status) is a family member of an EU national
The above is related to non-EU citizens whose right to be in the UK depends on their family relationship with an EU citizen. For example, if one is French and is married to an Italian citizen, both living as a married couple in the UK, they can both apply the way analysed above, (related to EU citizens). However, if one is Ghanaian, (non-EU citizen) and married to an Italian citizen, both living in the UK, the Ghanaian spouse of the Italian, (EU), citizen can also apply under the EU Settlement Scheme , but the process will be slightly different..
Family members of EU nationals may decide to apply for their new status at the same time as their EU citizen husband or mother or whoever it might be. The Home Office states that, “You’ll probably get a decision more quickly if you apply at the same time as or after your family member.” Family members will need to prove, through the same documents as those mentioned and described in the previous above paragraphs, the EU national’s identity and residence in the UK, although “evidence of the EU citizen having been granted status under the scheme will be sufficient evidence of the person’s identity, nationality and continuous residence”.
In addition, they will need to submit evidence of:
- Their own identity, (passport, and EU Residence Card, the latter being a document, indicative of their Immigration status in the UK, as a family member, close or extended of an EU citizen).
- Their own residence in the UK. (through Utility Bills, or Bank Statements, or Council Tax bills in which their full name becomes evident),
- Their relationship with the EU citizen, (for example, through the Certificate of Marriage).
Non-EU nationals who do not have a biometric residence card will also need to enrol their biometric information (namely, by fingerprints and a photograph) by booking an appointment and subsequently attending a SopraSteria centre. (see the paragraph making reference to the SopraSteria Centres and their role in gathering and forwarding information related to the EU and/or the non-EU Applicants-the latter being family members of the EU Applicants- to the Home Office).
C] In relation to an EU citizen already on Indefinite Leave to Remain? (subject to the pre-2006 EU legal framework)
Those EU citizens who have Indefinite Leave to remain in the UK can apply to get settled status, but do not have to.
Nevertheless, there are advantages in applying for settled status for those who have indefinite leave to remain, including:
- Settled status lapses after an absence from the UK of five years, whilst Indefinite Leave to Remain lapses after an absence of only two years from the UK.
- The rules enabling an EU citizen to have his family members join him in the UK are more generous and flexible for those who have settled status than those who have Indefinite Leave to Remain.
- From January 2021, (or better, from July 2021, when all the EU citizens living in the UK for at least five years and their non-EU family members will have to regularise their status by obtaining settled status), many private and public bodies checking individuals’ immigration status, such as banks, landlords, the NHS, may be more familiar with settled status documents than Indefinite Leave to Remain. Moreover, employers, for example, will not likely accept the Indefinite leave to Remain stamp of the EU citizen in question on an expired passport as evidence of the right of the EU citizen in question, to work in the UK; EU nationals on Indefinite Leave to Remain are very likely to have that stamp on an expired passport and will not be able to use that to prove their right to work when taking up a new job, especially after 30th June 2021, (the deadline, the EU citizens who are living in the UK for more than five years, are expected to apply to the Home Office and obtain the settled status, under the EU Settlement Scheme).
- There are criminality and security checks, as part of the application for pre-settled or settled status. Applicants, (EU citizens or non-EU citizens who are family members, close or extended of EU citizens living in the UK), must self-declare their criminal convictions, in case they have committed offences, as part of their pre-settled or settled status applications to the Home Office. (without, however, having to submit evidence while they apply to the Home Office) Upon receiving the applications in question, the Home Office will subsequently carry out its own checks through the Police National Computer and the Warnings Index.
- Under the Home Office Guidance, as well as under the current legal framework implementing the EU Settlement Scheme, (Appendix EU), an application for pre-settled or settled status will be refused if the Applicant in question, is “a serious or persistent criminal, a threat to national security, or have a deportation order, exclusion order, exclusion decision or removal decision against him”. Appendix EU also contains rules on refusal on the basis of “suitability”.
Time for the Home Office to make a decision
Generally speaking, straightforward applications, for example where an Applicant already has an EEA Permanent Residence, (under the pre-March 2019 legal framework of the Immigration EEA Regulations 2006, as amended in 2016), can take as little as a couple of hours.
However, those who are asked to submit additional documents, ((up to 10 documents at the Home Office’s request), in case the EU Applicant in question does not have a National Insurance Number so as to be tracked down by the Home Office by way of an enquiry with the public bodies, such as, (as mentioned in one of the above paragraphs), with the Department of Work and Pensions or the HM Revenue and Customs, should expect to wait longer, from some days to some weeks, (it is to be noted, here, that each application is treated by the Home Office on its own merits).
D] What happens when the (pre-settled or settled status) application is refused by the Home Office
The first point to note is that, if an application is incomplete and a caseworker thinks that it can be easily rectified, they should contact the Applicants and give them a reasonable opportunity to submit supplementary documents, (of up to ten documents, such as Utility Bills, Bank Statements, and other, showing that these Applicants are living and having residence in the UK). That said, if the Application is refused, the remedy will depend on when the application was made. Those who applied before 31st January 2020 at 11pm, (the time Brexit was announced), will have a right to an administrative review, unless the refusal is made on “suitability grounds”, in which case it seems the only redress will be judicial review, which is a complex legal process, which aims at showing that the initial decision of the Home Office is legally flawed on grounds of irrationality, procedural impropriety and legitimate expectation. (we will not proceed to analyse the complex Judicial Review process further in the context of this article).
Those Applicants who will challenge the decision of the Home Office by way of an application for administrative review, to put it simply, they will ask the Home Office caseworkers to double check the decision on points and make a fairer decision, to the Applicants’ favour.
Those Applicants, whose application for pre-settled or settled status was refused, and choose to challenge the decision of the Home Office, applying after 11pm on 31st January 2020, will be entitled to a right of appeal. That is, they will be allowed to appear in front of an independent Immigration judge, (in the so-called First-tier Tribunal), who will decide whether they should have been granted status. The Judge, (contrary to a Judicial Review hearing, when he will have to decide on the validity of sophisticated legal concepts), will have to rely on the facts of the case, substantiated by the relevant law, in order to make a decision; as a result, the appeal process may well increase the possibilities of the Applicant in question to prove that the initial decision of the Home Office was wrong and be granted the status he contends he has to be granted. (either pre-settled or settled).
The Applicants in question, can appeal both if they have been refused status altogether, or if they have been granted pre-settled status but they contend, that they should have been granted the full settled status, instead.
In case the Applicants in question will legally exhaust all their appeal rights may well be subjected to a deportation order by the Home Office and be forced to remove from the UK.
The pre-settled and settled status applications and the “coronavirus” effect
It is widely accepted that there will be a number of people, (EU citizens living in the UK or their non-EU family members, close or extended), who fail to apply for pre-settled or settled status before the deadline of 30th June 2021, set by the Home Office. It is just a question of how large that number will be. Every week counts in terms of keeping that number as low as possible and every week now lost to COVID-19, (coronavirus), is another reason why the Home Office should, assuming that the transition period is not extended, (beyond 30th June 2021), consider, also for reasons of fairness, extending the Settlement Scheme deadline beyond the above date.
∗ Ioannis Karamarias, LLB(Hons), LLM, is Solicitor in England and Wales, specialised on English Immigration Law