Free Movement is coming to an end at 11pm on 31 December 2020. If you are an European Economic Area (“EEA”), or Swiss national, so long as you enter the UK before 31 December 2020 with the intention to reside here, you can apply for either Pre-Settled or Settled Status confirming your right to continue living in the UK after 2020, under the EU Settlement Scheme (‘EUSS’). You will have until 30 June 2021 to apply. This 6-month period, between the deadline for residing in the UK, 31 December 2020, and applying under the EUSS, by 30 June 2021, is known as the Grace Period.
Although you (and your family members) can apply for Pre-Settled or Settled Status at any time during the Grace Period, not all of you will be protected until you have been granted status under the EUSS.
The recently published Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 (“Regulations 2020”) confirm that if you have not applied under the EUSS by 31 December 2020, you will only be protected during the Grace Period if you are a “Relevant Person”, which requires you to be “Lawfully Resident” before 31 December 2020 under the EEA Regulations 2016.
So what does being “Lawfully Resident” under the EEA Regulations 2016 mean? It means you must have exercised your “Treaty Rights” as an EEA or Swiss national within three months of entering the UK, and which you must begin to exercise before 31 December 2020.
What does exercising Treaty Rights mean? This means you must fall into one of the five categories (i.e. worker, jobseeker, self-employed person, self-sufficient person, or student). For example, if you are a student you must have enrolled onto a course and purchased Comprehensive Sickness Insurance (CSI). If you arrive in the UK close to 31 December 2020, you may not be able to demonstrate you are exercising your Treaty Rights in time.
Although the Withdrawal Agreement was understood to protect all EEA and Swiss nationals (and their family members) residing in the UK before 31 December 2020, the Regulations 2020, as drafted, provide no protection for those EEA and Swiss nationals (or their family members) who have not been granted leave under the EUSS by 31 December 2020 and were not lawfully resident as defined above.
If you fit into this small category, you may struggle to access the NHS or secure employment, until your application under the EUSS is granted. Even after you have been granted Pre-Settled or Settled Status under the EUSS, this short period of unlawful residence may jeopardise future applications for British citizenship as it may count against your good character.
So what does all this mean?
- Don’t leave it to the last minute. It is important to prepare for your arrival to the UK ahead of time and to seek legal advice if necessary.
- Apply for Pre-Settled or Settled Status before 31 December 2020, if possible.
- If you already have Permanent Residence, you will need to apply for Settled Status, but you are considered a ‘Relevant Person’ so you will be covered by Regulations 2020.
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.
Note the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 are not yet in force and this is currently only draft legislation. However, in light of correspondence between the Home Office and the Immigration Law Practitioners’ Association, it is likely that it will be enacted in its present form and come into force at 11pm 31 December 2020.
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.