The EU Settlement Scheme – Gulbenkian Andonian Explain It!

IN THIS ARTICLE WE DISCUSS THE NEW EU SETTLEMENT SCHEME AND THE APPLICATION PROCESS SURROUNDING IT FOR EUROPEAN NATIONALS APPLYING FOR SETTLED AND PRE- SETTLED STATUS IN THE UK AND THE FEE WAIVER!

As of yesterday 21 January 2019, EU nationals and their dependents (EU or not) will be able to apply under the second pilot voluntary scheme for settled or pre-settled status in the UK, and for settled status will have the £65 fee, or £32.50 fee (if child dependents under the age of 16) waived. The system will be rolled out to all EU nationals and dependents of such nationals whether EU or not, as from 30th March 2019. The partial phasing out of the scheme from 21 January 2019 will help the government to consider any pitfalls, problem areas and how to resolve these issues prior to the scheme going for the live and rolled out from 30 March 2019.

Announcement of the fee waiver

The fee waiver was announced by the Prime Minister in Parliament yesterday, the very day that there was a partial rollout of the settlement and pre-settlement scheme, but under the previous pilot which came to an end on 18 December last, and was available for certain groups of highly skilled health and educational workers, approximately 30,000 had already applied under the scheme and had paid a fee. Although the fee waiver was welcomed by all members of the House of Commons yesterday, there will be a costly Treasury reimbursement of millions to those who have already paid fees, and the concern is how efficient will the system be to reimburse in a timely manner.

Like most issues, it is only after pressure on the government that realisation for change comes to light, as  noted from the Prime Minister’s statement in the House of Commons yesterday when she said, inter-alia, having listened to concerns from members and organisations like the 3 million group, I can confirm today that when we roll out the scheme in full on 30th March, the government will waive the application fee so that there is no financial barrier for any EU nationals who wish to stay. Anyone who has or will apply during the pilot phase will have their fee reimbursed. More details about how this will work will be made available in due course.

How the system works

EU nationals and their dependents (whether EU or non-EU nationals),  and EU nationals even if married to a British citizen,( who have not or do not wish to, for whatever reason apply to remain as the spouse of a British citizen or settled person in the UK),  currently living in the UK, will have to apply by 30 June 2021 in order to be allowed to stay in this country. Successful applicants will be granted either settled or pre-settled status. If an EEA national does not qualify for settled status before 30 June 2021 they can apply to get pre-settled status. They will then be able to apply for settled status once they qualify for it.

What does settled and pre-settled status mean

Settled status means being both ordinarily resident in the UK and without any immigration restrictions on the length of stay here. Those EU nationals who are already British citizens do not need to apply, because there are already settled here.

EU citizens and their family members (both EU and non-EU), who arrive by 31 December 2020 but will not yet have been continuously resident here for five years, will be eligible for pre-settled status enabling them to stay until they have reached the five-year threshold. They can then apply for settled status.

If somebody from an EU country lives in the UK but has not been here for the last five years that the scheme requires, they can be given pre-settled status. This will allow them to stay in the UK until they hit the five-year mark. Then they will need to claim settled status.

Getting settled status or pre-settled statements under the EU settlement scheme means the person can continue to live and work in the UK after 31 December 2020. After the transition period, EU citizens who are in the UK before the 21st June 2021 can apply for settled or pre- settled status as the case may be, and will be allowed to continue living here. There right to stay in the UK is not affected by Brexit.

What about EFTA countries

EFTA country nationals, Switzerland, Iceland, Lichtenstein and Norway even though they are not EU member states, will have the same rights to residency in the UK by way of settled or pre-settled status, as will their dependents would not from EU are EFTA countries, like manner as EU citizens. A free-trade area such as EFTA, is a much looser form of economic and political union than the EU. EFTA negotiated access to the EU single market and partially accepted EU laws relating to single market access. They will therefore not be discriminated under the UK settled or pre-settled scheme.

Benefits and rights

Settled status will grant a person the same rights to healthcare education benefits and pensions as British citizens.

Problems if applications are not made by the deadline of 31 December 2020 or 30 June 2021

Anyone who does not apply by this deadline of 30 June 2021 when they should have will no longer be living in the country legally. There are at present some 3.5 million EU nationals with dependents who will have to go through this process if they wish to continue living in the UK after 30 June 2021. If the UK leaves the EU without a deal then the deadline for applying under the scheme will be 31 December 2020

Our view is that caution must be exercised to avoid thousands of people in the UK ending up without legal status. The Windrush scandal shows the dangers if the scheme goes wrong. If by mistake an adult doesn’t register a child then that child could lose his or her legal status through no fault of their own. Anyone who is a citizen of the EU country living in the UK and who wants to carry on living in the UK will need to apply under the scheme even if married to someone British, unless for other reasons an application has been made under the immigration rules to enter or remain on a spouse settlement visa. Adults will need to apply on behalf of children who have to go through the process. Successful applicants will be granted either settled or pre-settled status.

The following persons do not have to apply under the scheme

1. British citizens
2. Those born in the UK who have at least one parent with settled status.
3. People entitled to permanent residence in the UK.
4. EU citizens who applied to remain in the UK under the immigration rules

Is the grant of settled status subject to other conditions say for residence requirements?

EU nationals who have lived in the UK for five years by the end of 2020 will be granted settled status unless they have serious criminal convictions, and there is a security reason why they cannot stay. One can foresee much litigation in this area. During this five years they will need to spend at least six months of each year in a 12-month period in the UK, unless there are exceptional circumstances for their absence. People who are granted settled status will only need to apply to the EU settlement scheme once.

Critics of the scheme have said that it will be difficult to verify information like how much of one year a person has spent in a country or how long a person has lived somewhere, so it is important to maintain documentation to show residence in this country, such as employment records, payslips and the like, as these may become relevant when dealing with settled or pre-settled status.

How to apply for settled- pre-settled status

To apply to the EU settlement scheme people, need to fill in a form online or by post or by using a smart phone to download the Home Office app introduced for this purpose. However, at present until the scheme is rolled out nationwide on 30 March 2019, there is no other way of making an application, such as by email to the Home Office or their contractors, or by post, but no doubt these matters will come to light as the weeks go by and 30 March 2019 approaches. Until then, or indeed until further notice, people who use Apple phones will not be able to use the Home Office app as it only works on android phones. The required documents are scanned to the Home Office by this method at present.

There are of course many elderly persons and also those in care homes and other institutions who do not have access to Internet or would not be able to use information technology, and it is hoped that when the scheme is rolled out fully on 30 March 2019, personal applications can be accessed and other facilities available to make it easier for those who cannot access the required system or are not computer savvy to be able to make the application.

From the information required it should only take a few minutes to complete the application, and this hopefully avoids the need to complete lots of paperwork. That is the view of the government in any event, but we have some doubt as to whether the system will work smoothly as intended.

Applicants will need proof of three things to – (i).  ID, i.e. a valid passport or national identity card, (ii), evidence of residence in the UK such as a biometric residence card, National Insurance number, unless they have a valid permanent residence document or indefinite leave to remain or enter the UK. If they have any of these then these should be enclosed or scanned. (iii), relationship to a family member from the EU living in the UK if they want to come to the UK from outside the EU, or if they are here in that capacity, or as an EU dependent prior to applying. (iv), information about any criminal convictions (v) a recent digital photo of themselves.

No need to show exercise of treaty rights to obtain settled law settled status- just residence in the UK!

Although there will be no question of the exercise of Treaty rights of work in the UK either in employment, self-employment, or for example student with private medical healthcare or a person of means with such healthcare, we do not believe that proof of residency with the aforementioned documents may always be sufficient. A person requiring to show that he/ she has spent at least six months of a year (in a 12-month period), in the UK, in order to count towards the five years residence requirements, may therefore find it necessary to show that he / she or EU or non-EU dependent has  physically been here by other means such as work documents, confirmation from HMRC, bank statements covering many years of stay in the UK together with payslips. Although these are not matters that are officially stated are required, it is our view that they will probably be required in some circumstances. Anyone who has these documents should keep them safe for further evidence.

How long will it take to obtain settled or pre-settled status?

In June 2018 the Home Secretary Sajid Javid said that it should take no longer than two weeks for people to get a decision but our experience of delays at the Home Office and other immigration posts does not with regret give huge confidence that these applications are being and will be processed in a timely manner as envisaged.

What if settled or pre-settled status application is rejected?

the Home Secretary Mr Javid said that there would have to be very good reason for an application to be refused and that the idea was generally to grant settled or pre-settled status whenever possible. However, to be realistic and to look at its worst scenario, if an application is rejected there will be a process for immigration administrative review within 28 days of the decision. Technically if that review fails on the same facts as the application, there could be a judicial review. There may also be a right of appeal to the tribunal, and if a fee has to be paid, then it will be reimbursed in the usual way if the appeal is successful as at present when appeal succeed.

Will a no deal Brexit affect the EU settlement scheme– and what about reciprocal arrangements?

The short answer is NO. The government has repeatedly said it will guarantee the rights of EU citizens and their dependents, currently living in the UK. Furthermore, it is hoped that reciprocal arrangements with respect to British nationals living and working in the EU will be made by those EU countries concerning them. The EU has always said that it will treat UK citizens living in the EU in the like manner as EU citizens living in Britain. It is also hoped therefore as the Prime Minister said yesterday in the House of Commons, that the fee waiver for settled status will encourage EU countries where British citizens apply for such status to also waive any relevant fees in that regard.

What about family members of Irish citizens?

An Irish citizen does not need to apply for under the settlement or pre-settlement scheme. They will continue to enjoy the same rights and benefits as British citizens as at present. Furthermore, Irish family members do not need to apply either. Family members were not Irish will need to apply, as family members who are not British but married to British, unless of course an alternative application made under the immigration rules.

What about family member of an EU national who has died?

Such family member may be able to apply for settled status before the five-year period has expired. The family member must have been working for at least two years in employment or self-employment before death of the EU national. He/ she must have been living with the EU national at the time of death for at least two years. The death must have been as a result of injury at work or some occupational disease.

What about overseas partners/ spouses/and other dependents of EU nationals wishing to come to the UK?

If the overseas individual is not living in the UK by 31 December 2020, the person can apply to join the family member here after that date if the following matters apply: – the EU family member national  has either settled or pre-settled status, the relationship began before 31 December 2020, the individual remains a close family member of the EU national, such as for example spouse, civil partner, or unmarried partner, dependent child are dependent parent or grandparent.