On 7th November 2017 the government issued a new document setting out how the new settled status scheme for EU citizens will operate.
The document provides reassurance for those applying to stay in the UK following Brexit by confirming that applications will not be refused on minor technicalities and caseworkers will be applying discretion appropriately. It is expected that the majority of these applications will be successful and those which are not, will be given a statutory right of appeal.
Individuals will be expected to make an application within a period of time, estimated to be approximately 2 years, after the UK leaves the EU. The rights and status of EU citizens and their family members will be protected during this period. However, it is suggested that the Home Office will take a proportionate view to those who miss the deadline provided there are good reasons why an individual may not have applied in time.
The application process will be as streamlined as possible and a new system is being designed from scratch with new processes, technology, rules and support for applicants. The intention of the new system will be to draw on existing data held by UK governments through HMRC for example. For the majority, this will verify their residence as a worker and will minimise the burden of documentary evidence. EU citizens who are self-sufficient or are studying will also not be required to have held comprehensive sickness insurance.
There will be a much simpler process for individuals who have already been issued an EEA permanent residence document allowing them to exchange their existing document for a settled status document.
Subject to early an early agreement with the EU, the UK government has also suggested that there will be a “voluntary application process” whereby individuals will be able to get their new status at their earliest convenience.
The application fee is said to not exceed the cost of a British passport which is currently £72.50. Those who already have permanent residence will be expected to pay a lower fee.
The UK government has set out that the conditions for EU citizens acquiring permanent residence and settled status following the specified date will be the conditions currently set out by EU law. That is: five years of continuous and lawful residence as a worker, self-employed person, student, self-sufficient person, or family member thereof.
Applicants who are unable to demonstrate five years of continuous residence but who can demonstrate that they were lawfully resident before the specified date, will be issued temporary status.
The circumstances in which an application for status will be refused will be set out in a document named the “withdrawal agreement” which is yet to be agreed on and published.
The Home Office will be working with applicants to help them avoid any mistakes and/or omissions which may impact the decision made on their application. Decision makers will apply a principle of evidential flexibility whereby applicants will be provided the opportunity to provide supplementary evidence in support of their applications and remedy any simple omissions.
EU citizens whose applications are refused after the specified period has lapsed, will be considered as unlawful residence unless they hold another status. For example, leave to remain under the Immigration Rules or any post-exit successor arrangements for EU nationals. Once they become unlawful, they will be unable to work or have access to other services and may be asked to leave the UK.
As with applications made to the Home Office, applicants will be expected to declare any criminal convictions within the UK or overseas. The relevant checks will be carried out and those who would be eligible to apply for status once the UK leaves the EU may be denied such if they are considered a threat to public order or security. The consideration adopted will be dependant on when the most recent conduct took place.
If you would like to discuss making an application for an EEA residence card, EEA registration certificate or permanent residence, please contact us on 0208 995 3556 or email us at firstname.lastname@example.org