Permanent residence document v new settled status scheme

European nationals: protect your post Brexit status now - apply for a permanent residence document ahead of the new settled status scheme.

Brexit. The very word seems to incite feelings of excitement, change and uncertainty all at the same time. Every day we hear a difference in opinion from a wide range of professionals about the impact of Brexit on areas such as our economy, trade and of course, immigration. 

A very large chunk of those affected by Brexit are European nationals living in the UK. This group consists of over 3 million people, over 2 million of whom are working.  For most, they have never needed to do anything about their residency here and all this talk on ‘status documents’ and ‘permanent residence’ can be daunting. 

Status post-Brexit

Following months of uncertainty, the Home Office provided clarification on the post-Brexit position of EU nationals in the UK in February 2018. This is what they said:  

• EU nationals who have been living in the UK for at least five continuous years on or before 29 March 2019 (i.e. the date that the UK leaves the EU) will be able to apply for ‘settled status’. This means the holder does not have any restrictions on their stay and are free from immigration control. 
• EU nationals who arrive in the UK on or before 29 March 2019 but have not completed the five year qualifying period for settled status by the end of December 2020 will be able to apply for a temporary residence permit.  This permit will enable them to remain in the UK until they have reached the five year threshold for applying for settled status.
• EU nationals who arrive in the UK between 30 March 2019 and 31 December 2020 (after the UK has left the EU but during an adjustment period, known as the ‘implementation period’) will have to register if they want to stay here for more than three months and may also have to apply separately for a temporary residence permit if they wish to live and work in the UK after December 2020. Once they have registered, they will be able to live and work in the UK essentially without restriction.  They too will become eligible to apply for settled status after living and working in the UK for 5 years.
• Family members who are living with, or join, EU citizens in the UK before 31 December 2020 will also be able to apply for settled status after five years in the UK.
• After 31 December 2020, close family members will be able to join EU citizens who arrived in the UK before 31 December 2020, provided the relationship existed on 29 March 2019 and is genuine and subsisting. 

Permanent residence/document certifying permanent residence

Under the current Regulations, an EU national who has been residing in the UK as a ‘qualifying person’ (usually by working and/or studying here) continuously for at least five years will have permanent residence status in the UK.  To evidence this, they can apply for a document certifying permanent residence. Although EU nationals do not have to obtain such a document to live/work in the UK, they will need one if they want to apply for British citizenship.
 
Certain family members of EU citizens with permanent residence are also eligible to make an application for a permanent residence document under these rules, however some exceptions do apply.

The ‘settled status’ scheme – what is it? 

The Home Office has promised a streamlined, efficient and user-friendly scheme for European nationals when applying for a new ‘settled status’ document.  This document, once acquired, will confirm that the holder does not have any restrictions on their stay in the UK. 

This scheme is still in the development stages - it was due to be opened to applicants in Summer 2018 but this has now been pushed back until late 2018.  At the time of writing, no official release date has been published for this new scheme. 
 
If an EU national already has a permanent residence document/card, they will be able to exchange it for a new settled status document free of charge. They will, however, have to declare any convictions and confirm that they intend to reside in the United Kingdom for the foreseeable future.

To wait or not to wait? 

The settled status scheme may provide reassurance to EU nationals that their interests are being considered and steps are being taken to safeguard their rights. That said, we will need to wait to see how the scheme is implemented in practice and, in particular, how applications are dealt with by the Home Office. 
 
For the moment, our advice continues to be that EU nationals who qualify for a permanent residence document should apply for one and should do so sooner rather than later to protect their legal status.

The government has agreed that EU nationals will be able to use a streamlined (and free) process to ‘upgrade’ their permanent residence document to a settled status document in due course.  It makes sense to get ahead of the game and apply for a permanent residence document now, rather than waiting to apply for settled status alongside the millions of other EU nationals in the UK when the time comes.

It is also worth bearing in mind that the government has suggested that once the settled status route opens, EU nationals will no longer be able to apply for permanent residence status.

One further note of caution – if you are an EU national applying for a permanent residence document, make sure that your application clearly demonstrates that you meet all of the relevant requirements and that you submit all of the necessary supporting documents.  Processing times for these applications are currently up to six months.  If you make your application within the next few months and it is rejected, by the time you find out it may be too late to re-apply (as the route may already have closed).  You should therefore make sure you get your application right the first time.  If you are unsure, ask a lawyer to advise on your application and/or review your supporting documents before submission.
 
Doyle Clayton has a dedicated team of specialist immigration solicitors with considerable expertise in advising EU nationals about their rights and the options available to them in light of Brexit.
 
For further information please contact Doyle Clayton's Immigration team on 020 7329 9090 or email info@doyleclayton.co.uk.