The UK’s deal on exiting the EU is currently foundering, at home and in Europe, and the situation of EEA nationals in the UK post withdrawal remains uncertain. Further, the immigration rules designed to phase in the government’s proposals on EEA citizens are already facing criticism by a leading association of immigration lawyers.
The Immigration Law Practitioners’ Association (ILPA) promotes best practice and advises on policy. It recently produced a commentary document on the EU Settlement Scheme relating to the compulsory registration of approximately 3.8 million EU citizens post Brexit. The scheme pre-dates the government’s current withdrawal agreement but will be fully implemented should that deal (or one similar) go through.
One of the first comments made by ILPA, however, was that the “considerable uncertainty surrounding a “no deal” scenario” means that it was not possible to address that eventuality in its report. The question of what will happen to EU nationals in the UK in the event of such a no deal scenario looms ever larger on the horizon.
On the ‘Layout and Complexities’ of Appendix EU ILPA commented that:
“some of the definitions are unnecessarily complex and the degree of cross-referencing required is likely to make the Appendix difficult to use even for experienced practitioners…….” .
The report further highlighted that applicants are at risk of failing to meet the requirements of Appendix EU, because the guidance documentation, which the Home Office expects to be the single reference point for applicants, is deficient.
Losing pre-settled status and Continuity of Residence
ILPA has requested urgent clarification in the current web guidance, relating to the circumstances in which EEA nationals may lose their so-called pre-settled status, so applicants do not fall foul of the Rules and are able to maintain the “continuity of residence” to reach “settled status”.
The guidance currently states “you should be able to spend up to two years in a row outside the UK without losing your pre-settled status”, which applicants may (quite reasonably) understand to mean they can leave the UK for up to two years without a significant impact on their status. However, if they do, they risk jeopardizing their prospects of qualifying for settled status under the continuity of residence requirements. Indeed, under Appendix EU, continuity of residence requires absences from the UK of 6 months or less in any 12-month period.
Further, ILPA recommends that caseworkers “are afforded some discretion when assessing whether an applicant’s continuity of residence is broken or not”. Clarification is also required as to how the 12-month period will be calculated.
ILR granted under Appendix EU of the Immigration Rules will only be effective from the date of grant. As such, individuals will need to remain in the UK for at least a 12-month period from that date until they become eligible to naturalise (even if they acquired permanent residence at least 12 months ago).
Our advice is that if you currently qualify for permanent residence you should apply for this as soon as possible under the current Immigration Rules. If you are an EU national and do not yet qualify for permanent residence please contact us for further advice and assistance.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.