More details announced on the post-Brexit “EU Settlement Scheme” for EU citizens and their families living in the UK

What is included in the “EU Settlement Scheme”?

As reported in our blog on 25 June 2018 on the EU Settlement Scheme, EU citizens and their family members who arrive in the UK before 1 January 2021 and have been in the UK for five years will be eligible to apply for settled status. Those who have lived in the UK for less than five years will be eligible for pre-settled status until they reach the five year mark, at which point they can apply for settled status. 

The Government has recently announced more details on what the EU Settlement Scheme will look like, in the form of the draft rules that will be incorporated into the existing Immigration Rules, as well as a recently-published Statement of Intent. 

What are the draft rules within the “EU Settlement Scheme”?

The Government has put before Parliament a Statement of Changes inserting Appendix EU into the Immigration Rules, which gives effect to most provisions covered by the draft Withdrawal Agreement and provides a “self-contained set of Immigration Rules for the EU Settlement Scheme”. 

Appendix EU took effect on 28 August 2018 for an initial test phase involving the employees of twelve NHS Trusts and the students and employees of three Liverpool universities, before a phased roll-out of the scheme until it opens fully in March 2019. The draft rules will be reviewed during the test phase so may be subject to change. 

The key provisions of Appendix EU are: 

• EU nationals and their family members who started living in the UK before 1 January 2021 and who have lived here for a continuous period of at least five years will be granted indefinite leave to remain in the UK (ILR). 
• EU nationals and their family members who started living in the UK before 1 January 2021 and have been here for less than five years, but would otherwise be eligible for ILR, can apply for leave to remain in the UK (also referred to as ‘pre-settled status’).  Once they complete the five year continuous residence period they can apply for ILR.
• There are a number ways in which an applicant will qualify for ILR, including where they already hold permanent residence (PR). Importantly, there is no requirement to show that you have been exercising Treaty rights by working or studying in the UK, you only need to evidence that you have lived in the UK continuously for five years – i.e. that you have not been absent from the UK for six months or more in total in any 12-month period in the five years relied on (save that a single period of absence of up to 12 months for an important reason such as pregnancy/childbirth, serious illness, study, vocational training or an overseas posting will not break continuous residence). 
• You will not qualify for ILR if you have previously acquired PR but been absent from the UK for more than five consecutive years. Certain individuals serving prison sentences as well as those subject to deportation and exclusion orders may also fail to qualify.
• Children aged under 21 of EU nationals (or of their spouse or durable partner, provided the marriage/ relationship subsisted before 31 December 2020) who either already hold ILR under Appendix EU or are applying at the same time, will be eligible for ILR in line with their parents regardless of whether they have lived in the UK for five continuous years.

Applicants who meet the requirements will be granted leave to remain or ILR if they apply using the required online form, pay the fee and provide their biometrics, required proof of ID and nationality. The Home Office may require the applicant to provide more documents or attend an interview before making its decision. 

What does the new scheme mean for EU citizens applying for leave to remain or ILR?

Although the new EU Settlement Scheme is not yet open to the general public, the recent Statement of Changes gives some much-needed detail on the practicalities of the Scheme, the key points being:

• The digital application process will be provided on GOV.UK – this is currently still being tested.
• The application fee proposed (but not yet approved) is £65 and £32.50 for under 16s. There will be no fee if you already hold PR or ILR and no immigration health surcharge to pay.
• Applicants will need to provide proof of ID and nationality - there will be a smartphone app for reading the chip in biometric documents or applicants can post their documents to the Home Office to be checked and returned.
• Applicants who have continuously worked in the UK will likely not need to provide any documentary evidence of living here as the Home Office will carry out automated checks of HMRC and DWP data. If these checks are insufficient then applicants can upload documentary evidence of continuous residence, such as bank statements and tenancy agreements. 
• Where a valid application is refused, applicants can request an administrative review and, subject to Parliamentary approval, from 30 March 2019 applicants should have the right to appeal.  

In the meantime, the rights of EU nationals and their family members who are living in the UK are unchanged and the cut-off for applying for ILR or leave to remain is still 30 June 2021. However, if you have lived in the UK for five years or more already and wish to apply for PR and/or British citizenship then you can still apply for this under the current rules.

If you have any questions about your status in the UK please get in touch with Liz Timmins on 0207 329 9090 or by email to ltimmins@doyleclayton.co.uk or email the immigration team at immigration@doyleclayton.co.uk.