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Clearer prospects for EU citizens living in the UK

By Stefan Nerinckx, Attorney and Partner, Fieldfisher Brussels, and Gillian McKearney, Senior Associate, Fieldfisher London

As the new Brexit deadline is coming closer, the UK Government has implemented the EU Settlement Scheme – pre-settled or settled status – for EU, EEA or Swiss nationals to apply for residence status and continue living in the UK after June 30, 2021.

Residence status

If any EU national or their family member is eligible and wishes to apply for pre-settled status, they will be required to do so by June 30, 2021 in a situation where Brexit takes place with a deal, or by December 31, 2020 in a no-deal situation. In the latter case, the applicant can apply after the date of Brexit, but will need to have been present in the UK before Brexit.

At present, there are two statuses available:

  1. Settled status – whereby the applicant has lived in the UK for a continuous period of five years before December 31, 2020 in a situation where Brexit takes place with a deal, and before Brexit in a no-deal situation. Continuous means having lived in the UK for at least six months in any 12-month period, with some exceptions. The applicant is able to apply for settled status if they lived continuously in the UK for five years but have been absent from the UK more recently. Please note that the applicant cannot be absent for more than five years continuously after having completed five years' residence in the UK.
  2. Pre-settled status – whereby the applicant does not have five years of continuous residence when they apply. The applicant must have been in the UK by December 31, 2020 in a situation where there is a deal, and before Brexit in a no-deal situation. The applicant will then be able to apply for settled status once they have five years' continuous residence. Once the applicant has pre-settled status, they can stay in the UK for five more years from the date they obtained pre-settled status.

Settled or pre-settled status: Rights!

Once granted the settled or pre-settled status, the person will be able to:

  • Work in the UK;
  • Use the National Health Service (NHS);
  • Enroll in education or continue studying;
  • Access public funds such as benefits and pensions (if eligible);
  • Travel in and out of the UK.

With pre-settled status, the person can spend up to two years in a row outside of the UK without losing their pre-settled status. The person will, however, need to maintain their continuous residence if they want to qualify for settled status after five years.

Eligibility

In order to be eligible to apply for pre-settled status the applicant must meet the following requirements:

  1. Be an EU national or be a family member of an EU national with a valid passport or national ID document;
  2. Have evidence of having resided in the UK with a document that is dated in the last six months;
  3. Satisfy the suitability requirements (concerning criminal convictions, etc.);

The applicant is required to input their National Insurance number if they have one, and they may not have to provide evidence of UK residence if the HM Revenue & Customs – the UK’s tax, payments and customs authority – system shows that they have worked in the country. Otherwise, they will need to upload proof of UK residence. The applicant is not required to provide evidence of their entire UK residence, but just enough to show that they qualify for at least pre-settled status (if the applicant has not resided in the UK for five years). The applicant should only need to provide one document dated in the last six months to be granted pre-settled status. A used flight ticket would be considered valid, for example. Therefore we can say that if someone has been present in the UK in the past six months and has a used flight ticket to evidence this, they may be able to apply for pre-settled status from outside the UK. Similarly, if someone travels to the UK, even for a short period, it seems likely that they can apply for pre-settled status from within the UK, although they will need to be present in the UK for the whole application process, which often takes only a few hours.

The current website requests documents provided to be dated within the last six months. If someone is applying for pre-settled status and has been absent from the UK for more than six months, they would need to show that it is for one of the permitted exceptional reasons, such as maternity leave. All documents must be dated and must have the applicant's name on them. The list of documents below is not exhaustive; however, these documents are recommended.

Documents accepted to evidence shorter period of stay:

  1. Used travel ticket confirming the applicant entered the UK from another country;
  2. Invoice for work the applicant has done in the UK and evidence of payment;
  3. Passport stamped confirming entry at the UK border;
  4. Letter from a government department, public service or charity;
  5. Card or letter from the applicant's General Practitioner (GP), hospital or other healthcare professional confirming the appointment the applicant has made or attended;
  6. Domestic bill and evidence of payment;
  7. Landline or mobile phone bill showing a UK address;
  8. Utility bill showing a UK address;
  9. Payslip from a UK-based job;
  10. Bank statement showing payments received or spending in the UK.

It is unlikely that the Home Office will approve applications for pre-settled status from those living outside the UK who have not been in the UK for the past six months, and where the absence is not justified by an exceptional reason such as maternity leave. However, it may be worth trying to apply if you have previously spent time in the UK.

Therefore, if you are in the UK or have been in the past six months, or if you are outside the UK and have been in the UK during the past six months, it may be worth applying for pre-settled status, especially as there is no cost involved.

Applying for pre-settled status from abroad

Applicants are now able to apply for pre-settled status from abroad by following this link: https://www.gov.uk/settled-status-eu-citizens-families/applying-for-sett.... The applicant will need to fill out the application form, and they may need to upload further proof of residence unless this is evident by providing their National Insurance number. The Home Office will then consider whether the applicant should be granted pre-settled status, and in the process they may request further documents to be presented.

Applicants will initially be required to prove their identity, and the only way to do so is by using an Android phone (unfortunately, the service is still not available for iPhone). The applicant will be required to download this app: https://play.google.com/store/apps/details?id=uk.gov.HomeOffice.ho1&hl=en. Once their identity has been confirmed, the applicant can continue the application on their phone or on the computer.

Once a decision has been made, the applicant will be contacted by the Home Office confirming the status and the applicant will be given a link to the online government portal confirming their status. This page can be shared with any future employer or landlord as means of proof.

Advantages of applying for pre-settled status now

If the applicant applies for the EU Settlement Scheme successfully (having evidence dated from the last six months), they will be able to continue living and working in the UK after June 30, 2021 (the end of the transitional period). However, if upon receipt of pre-settled status, the applicant does not re-enter the UK within two years, they will lose their status. If the applicant is unable to apply for the settled status after five year into the pre-settled status – due to failure to meet the requirements – they will likely have to apply for further leave to fall under the scope of the new immigration rules, which will enter into force on January 1, 2021. However, this situation is still held under consideration by the UK Government.

If no application for pre-settled status is made and in the event of a no-deal scenario, an individual will be able to enter the UK for up to three months; however, if they wish to remain in the UK, they will need to apply for “European temporary leave to remain”. This status is new and separate from the EU Settlement Scheme explained above. Please note that in the event of a no-deal situation, all EU nationals will be able to enter the UK and remain temporarily for up to three months.

If Brexit takes place with a deal, the transitional period will come into effect, meaning that applicants are able to apply for pre-settled status up until June 30, 2021. From January 1, 2021, the new immigration rules will come into effect which will mean that any new EU nationals (having arrived in the UK as of January 1, 2021) will have to comply with the new immigration rules. Again, these rules are currently under consideration by the UK Government and not yet confirmed, but it looks like EU nationals will require sponsorship from UK employers in order to live and work in the UK.

About the authors

Stefan Nerinckx Stefan Nerinckx is an attorney/partner, heading the Employment Law practice in Brussels and is the international practice leader for Employment Law at Fieldfisher. With more than 28 years of experience in (international) employment, social security and business migration matters, he covers the full range of Individual and collective Labor and Employment Law. He is a prolific writer (e.g. co-editor of a legal journal), professor of employment law at the University College Brussels (Odisee/EMS-KUL) and a public speaker at conferences.  He is for years praised by clients and peers in most legal guides such as Chambers, Legal 500, Best Lawyer's, Leaders League…
Gillian McKearney Gillian McKearney is Head of UK Immigration (Senior Associate) at Fieldfisher LLP.  She is experienced in advising on immigration strategy and compliance, and she regularly advises corporate clients in all areas of business immigration, including work visas, business visitors, sponsor licensing, European applications, right to work checks and restructuring.  She also advises entrepreneurs and high net worth individuals in the Tier 1 Investor and Innovator routes. She is a member of the Immigration Law Practitioners' Association.