On 21 June 2018 the Home Office published its “Statement of Intent” introducing the requirements and application procedures under the new “EU Settlement Scheme”. The scheme will be open fully by 30 March 2019 and the deadline for applications for “settled” and “pre-settled” status for those EU citizens and their family members who are resident in the UK by the end of the implementation period on 31 December 2020 will be 30 June 2021.
For the purposes of the scheme, the definition of “resident in the UK” will include those people who are in the UK before midnight on 31 December 2020 and will also cover people who were previously resident in the UK but who will be outside the UK on that date, provided they have maintained the continuity of their residence in the UK.
Those who have already been granted permanent residence documentation under the current free movement rules or those applicants who do not yet hold such documentation but have completed 5 years continuous residence in the UK, may have broken the continuity of their residence by having been absent from the UK for more than 5 consecutive years at any point since they last acquired the right of permanent residence in the UK or last completed a period of 5 years continuous residence in the UK.
Persons who have completed a continuous period of 5 years as a relevant EU citizen (or their family member) will be eligible to apply for “settled” status – indefinite leave to remain in the UK. Applicants who have been continuously resident in the UK for less than 5 years up to the date of the application, will be eligible for 5 years limited leave to remain in the UK.
People applying under the new scheme will not be required to evidence the exercise of specific EU Treaty rights, such the right to work in the UK or to show that they have held comprehensive sickness insurance throughout the whole duration of their stay in the UK, which had previously been required for applications made by self-sufficient people and students. Further, the process of obtaining “settled” status will not involve passing the Life in the UK test or meeting English language requirements, which are currently standard requirements for applications for indefinite leave to remain.
Accordingly, the main requirement under the new regime will be the continuous residence in the UK. Additionally, EU citizens and their family members will be required to make a valid application and not fall to be refused on the basis of serious or persistent criminality or other public policy reasons.
The Home Office expects that the majority of applicants will be able to confirm continuous 5-year residence in the UK through automated checks of HMRC and DWP data, and for those who will not be able to confirm their continuous residence through the above-mentioned checks, the Home Office undertakes to provide, by way of an example, a list of documents that these applicants will be able to upload as part of the application process to comply with the requirement.
Following the grant of the application, a “settled” person will be allowed to be absent from the UK for any reason for 5 consecutive years before their “settled” status lapses and they cannot use it to return the UK. Holders of “pre-settled” status will need to maintain continuous residence in the UK and their family relationship, where relevant, in order to qualify for settled status generally after 5 years continuous residence here. In these circumstances, a person with “pre-settled” status will maintain continuous residence in the UK by not being absent from the UK for more than 6 months in total in any 12-month period.
It should be noted that this cannot be considered the final position on this issue and we will endeavour to keep readers updated on any changes, given that the Home Office is prone to shuffling and changing its position.
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.