We set out below the reasons why EU/EEA citizen, or their family members, who are resident in the UK should, where possible, apply for Settled /Pre-Settled Status before 31 December 2020. However, if you are currently resident in the UK, the deadline for applications under the EU Settlement Scheme is 30 June 2021.
If you are an EU/EEA citizen who is not resident in the UK and you wish to be able to reside in the UK, those wishing to rely on their EU/EEA nationality must be resident in the UK before 31 December 2020. Those who are family members of an EU/EEA national, may come to the UK thereafter and apply subject to specific requirements. Please contact Gherson for further information.
End of the Brexit Transition Period
Free Movement will come to an end at 11pm on 31 December 2020. This means that EEA and Swiss citizens, and their close family members, will no longer have the ability to freely enter and exit the UK pursuant to EU free movement rights and free from domestic immigration law controls. This is due to the fact that The Immigration (European Economic Area) Regulations 2016, the regulations which allow EEA/EU nationals, and certain family members, to exercise their treaty rights in the UK, will cease to be in force after 31 December 2020. Instead, all EEA and Swiss nationals and their close family members who seek to enter and reside in the UK after 31 December 2020 will need to apply for and hold a valid immigration status under the UK’s Immigration Rules (which have historically only applied to non-EU migrants).
Similarly, those who hold Registration Certificates or Permanent Registration Certificates (and those family members who have been duly issued with Residence Cards or Permanent Residence Cards) under the EEA Regulations will no longer be deemed to hold valid EU derived residency status as of 31 December 2020. These individuals must register under the EUSS prior to 30 June 2021 to ensure that they continue to have the right to reside in the UK under domestic immigration law. Failure to do so may result in overstaying and unlawful residence in the UK.
The Grace Period
The period between 31 December 2020, when Freedom of Movement between EU Member States and the UK officially ends, and 30 June 2021 (when the EU SS closes) is known as the ‘Grace Period’. This period represents the time allowed for those EU/EEA citizens (and their family members) who have been resident in the UK prior to 31 December 2020, but have not yet applied under the EUSS, to make their application.
Although EU/EEA nationals (and their immediate family members) can apply for Pre-Settled or Settled Status at any time during the Grace Period, there will be no protection provided by the EEA Regulations during this time, and therefore a person’s immigration status in the UK will not be secure until status has been granted under the EUSS.
The recently published Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (“Regulations 2020”) confirm that if a person has not applied under the EUSS by 31 December 2020, they will only be protected during the Grace Period if they are a “Relevant Person”, namely that they were a person who was “lawfully resident” in the UK prior to 31 December 2020 in accordance with the EEA Regulations 2016.
Being “lawfully resident” under the EEA Regulations 2016 means that a person must have been exercising their “treaty rights” as an EEA or Swiss national within three months of entering the UK, and must be exercising treaty rights in the UK before 31 December 2020. Alternatively, those who hold valid Permanent Registration Certificates are also deemed to be lawfully resident.
What does exercising treaty rights mean? This means a person must fall into one of five categories – i.e. worker, jobseeker, self-employed person, self-sufficient person, or student. Each of these categories requires specific documentation to evidence that the relevant EEA/EU national us exercising their treaty rights. For example, if a person is a student they must have enrolled on a course, have purchased Comprehensive Sickness Insurance (CSI), and have sufficient funds to maintain themselves. Or if for example a person is self sufficient, they must hold sufficient funds, not to be a burden on the State, and hold CSI.
Those EEA or Swiss nationals who seek to enter the UK during or after the Grace Period or who cannot evidence that they have resided in the UK lawfully prior to 31 December 2020 will be subject to the regular, domestic UK immigration control conditions and requirements, including the Grounds for Refusal, in line with the UK’s new points-based system. This is particularly pertinent for those migrants who may fall foul of the low threshold applied under the Grounds for Refusal, particularly in relation to character, conduct, associations, or other reasons which may not be deemed conducive to the public good, and which may result in refusal of a visa or entry at port.
Comparatively, those EEA or Swiss citizens who are protected by virtue of the EEA Regulations 2016 during the Grace Period will be subject to a much higher threshold afforded by EU Law, and which requires the personal conduct of the person to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
The EU Settlement Scheme
The EU Settlement Scheme provides successful applicants with one of two types of status: Pre-Settled Status and Settled Status.
The difference hinges on the period of continuous residency which the applicant can evidence, and subsequently the length of leave granted.
Pre-Settled Status is granted to any person who has been resided in the UK for a period of less than five years. To be eligible, the applicant must evidence that this period of residency began period prior to 31 December 2020. The applicant must also be an EU/EEA citizen, or the direct family member of an EU/EEA citizen. Pre-Settled Status grants the holder a fixed five-year period of leave in the UK. This status cannot be extended and is a finite grant of leave.
Settled Status requires any EEA/EU national (or relevant family member) to have been resident in the UK for a continuous five-year period. Settled Status grants the holder Indefinite Leave to Remain in the UK.
What should be done now?
If you have not already taken action and applied under the EU Settlement Scheme to secure your status in the UK, do not leave it to the last minute to apply. It is important to ensure your status in the UK has been secured, and to seek legal advice if necessary. This includes those EU/EEA nationals who hold Registration Certificates or Permanent Registration Certificates (or family members that have been issued with Residence Cards or Permanent Residence Cards) under the EEA Regulations 2016.
If you have not already done so, we urge everyone who is eligible to apply for Pre-Settled or Settled Status before 31 December 2020 where possible. The official deadline for Pre-Settled Status under the EU Settlement Scheme is 30 June 2021. However to ensure the most secure position, it is advisable to make this application at the earliest possibility. Those who have been granted Pre-Settled Status and who qualify for Settled Status after 30 June 2021 will be able to apply accordingly.
Please also ensure that you are exercising treaty rights in the UK prior to 31 December 2020 and that you have all required documentation to prove the same. Please note that non-compliance with immigration laws, including periods spent in the UK by EEA/EU nationals who cannot evidence their exercise of treaty rights, may also affect future applications for British citizenship. If in doubt, please contact Gherson urgently.
Gherson has a wealth of experience in all aspects of UK immigration law and has assisted many clients with their applications under the Home Office’s EU Settlement Scheme. If you have any specific questions or queries in respect of your particular circumstances, please do not hesitate to contact us by email at firstname.lastname@example.org or by telephone at +44 (0) 207 724 4488.
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.