LawFlash

UK Statement of Intent Addresses Post-Brexit Status of EU Nationals in the UK

June 27, 2018

The UK government has published a Statement of Intent on how the EU Settlement Scheme will work for European Union nationals and their families to secure long-term status in the United Kingdom after its withdrawal from the European Union. EU nationals should take note of the application process to secure “settled status”, and employers should consider taking steps to ensure a smooth transition for their EU national employees when the UK leaves the EU.

The UK government estimates that three million EU nationals are currently in the United Kingdom. Pre-Brexit, these individuals have been able to live, work, and travel using only their passports as evidence of their permission to stay. In the latest Brexit development, the Home Office has published the EU Settlement Scheme: Statement of Intent, which sets out how EU nationals and their family members will be able to continue living in the UK permanently by applying for “settled status”. The statement sets out details about eligibility for the scheme and how it will work, and includes the draft Immigration Rules which will give legal effect to the scheme. The statement also lists some of the evidence EU nationals will need to provide to the Home Office to prove they are eligible to stay in the UK after it exits the EU.

Once the UK leaves the EU, all EU nationals living in the UK will transition to being covered under UK domestic law. This will not be an automatic transition, however, and all EU nationals and their family members, regardless of arrival date, will need to apply to the Home Office for permission to stay under the EU Settlement Scheme which will be set out in the UK Immigration Rules. Once granted, the permission to stay will enable EU nationals to demonstrate that they have the right to legally live and work in the UK, and they will continue to have the same access to work, study, benefits, and public services that they currently enjoy.

Rights for citizens of Norway, Iceland, Lichtenstein, and Switzerland (which are not EU members but whose citizens enjoy the right of free movement in the UK) are still being negotiated, but it is expected that the scheme described in the Statement of Intent will be open to nationals of these countries and their family members. Irish nationals residing in the UK will not need to apply for settled status to protect their entitlements, as the rights of British and Irish citizens in each other’s countries are rooted in the Ireland Act 1949.

Application Type

All EU nationals and their family members must make an application under the scheme before 30 June 2021 if they intend to continue to reside in the UK after June 2021. After a phased roll-out starting later this year, the scheme will be open fully by the time the UK leaves the EU in March 2019. EU nationals and their family members will fall into one of the following categories:

  1. EU nationals and their family members who arrived before 31 December 2020 and who will have completed five years’ residence in the UK before 30 June 2021 will be able to apply under the scheme and can be granted “settled status”.
  2. EU nationals and their family members who arrive before 31 December 2020 but who will not have completed five years’ residence in the UK before 30 June 2021 will be able to apply under the scheme and can be granted “pre-settled status” (referred to as “temporary status” in previous Home Office publications). Pre-settled status allows EU nationals and their family members to stay in the UK until they have reached five years of residence, after which they will be able to apply for settled status.
  3. EU nationals and their family members who already have acquired permanent residence under existing EU regulations will not automatically be granted settled status. However, such individuals can submit simplified applications and will be able to swap their existing permanent residence documentation for settled status free of charge, subject to criminality and security checks confirming that the preexisting status has not lapsed.
  4. EU nationals who arrive in the UK after 31 December 2020 will not automatically be eligible to apply for settled status, and their future in the UK will depend on the forthcoming immigration arrangements for EU nationals.

Family Members

Family members of EU nationals will be able to join EU nationals living in the UK after 31 December 2020 if they can demonstrate that their relationship with the EU national existed by 31 December 2020 or that they are a close family member (e.g., spouse, civil partner, dependent child or grandchild, or dependent parent or grandparent).

Application Process

The deadline for applying is 30 June 2021. As noted above, there will be a phased roll-out from late 2018, and the scheme will be open fully by the time the UK leaves the EU in March 2019. More information is expected to follow on when the EU Settlement Scheme will open and how to apply. EU nationals and their family members will be required to provide evidence of the following:

  • Identity: This can be shown with a valid passport or national ID card and a recent digital photo.
  • Residence in the UK: Residence can be proven by granting the Home Office permission to check Her Majesty’s Revenue and Customs data or by providing certain other evidence.
  • Relationship to a family member from the EU if they are from outside the EU: This can be shown through a scanned a birth, marriage, or civil partnership certificate.

Applications will cost £65 (£32.50 for children under 16). The new application system aims to be streamlined and user-friendly, in part by drawing on existing government data to minimize the burden on applicants in providing proof of residence. This streamlined process will take an applicant through three simple stages: proving identity, verifying that the individual is not a serious criminal, and confirming residence in the UK.

It is currently envisaged that applicants will be able to submit scanned copies of documents evidencing their identity and residence through an online application form, and for those who wish to complete the application entirely online, the process will be available via mobile phone, tablet, and laptop. Individuals who do not wish to apply online will be required to send their identity and residence documents to the Home Office by post. The Home Office is establishing a dedicated team to check these documents and aims to respond to the applicant as soon as possible.

Proof of Status

If the application is successful, proof of status will be confirmed through an online service, and EU nationals will not receive a physical document. Only family members of EU nationals from outside the EU will receive a separate biometric residence permit.

Once granted, settled status will be retained unless the individual remains outside the UK for more than five years.

What This means for Employees and Their Employers

As negotiations continue, EU nationals and their family members should be protecting their positions now pending any final Brexit agreement. Applying now for permanent residence under existing EU regulations will maximize peace of mind, and in the event that a deal is not reached, EU nationals, their family members, and their employers will avoid ending up in a state of limbo. EU nationals who cannot currently apply for permanent residence should collate documents evidencing their dates of entry to the UK and their residence in the UK.

As we set out in our previous LawFlash, employers should take time to engage with their workforce on these issues. There are many practical steps that employers can take now to ensure a smooth transition into a post-Brexit world. Employers should consider doing the following:

  • Audit immigration status of workforce to help plan for change
  • Identify European Economic Area (EEA) and Swiss nationals working in the UK
  • Identify UK nationals working elsewhere in the EEA
  • Check employee arrival dates in the UK or abroad (to determine eligibility to apply for permanent residence)
  • Review long-term recruitment and succession planning and proposed secondments and rotations
  • Decide how to support employee applications and how much to invest in the process
  • Plan employee communications and provide information to employees on current application processes and proposed changes
  • Communicate key application actions and deadlines to employees
  • Encourage employees to obtain confirmation of rights by applying for registration certificates or permanent residence
  • Provide practical advice to those not yet eligible to apply for permanent residence and steps they can be taking now
  • Plan for possible alternative measures post-exit, such as Tier 2 applications
  • Review current right-to-work procedure to ensure that employees are prepared for the implications of the widening of the right-to-work regime

Post-Brexit EU-UK Migration

After the UK leaves the EU and after the proposed transition period, free movement will end, but migration between the UK and the EU will continue. The UK government is considering a range of options as to how EU migration will work for new arrivals, and the Home Secretary has commissioned the Migration Advisory Committee (MAC) to advise on the “economic and social impacts of the UK’s exit from the European Union and also on how the UK’s immigration system should be aligned with a modern industrial strategy”.

The MAC will provide its recommendations to the UK government on the most suitable post-Brexit immigration system for the UK’s economic strategy. The MAC is expected to publish a full report by September 2018.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

New York/London
Nick Hobson

London
Jennifer Connolly
Yvette Allen