EU children and young people – protecting their rights in the UK
The UK is due to leave the European Union (EU) on 29th March 2019. This page is designed to provide information about EU legal rights which might currently apply to children and young people or their carers. It is also aimed at helping those children, young people and carers to prepare for changes to their future residency rights in the UK.
Who currently has rights?
The people who have rights currently are:
- Nationals of a country within the EU, Switzerland or the European Economic Area (EEA) who came to UK for a purpose which carries a right to reside (these are referred to as ‘EU nationals’ in this page)
- Family members (spouse, same-sex civil partner, children, grandchildren, and step-children under 21 or who are still dependent, and ascendant relatives) of a person in the above group, even if those family members are not EU nationals
- Extended family members – this includes ‘durable partners’ (unmarried couples) and relatives who are not direct family members (e.g. siblings, nieces, nephews, cousins), but are dependent on a qualified EU national and have documentation evidencing their rights
- People who have retained a right of residence despite the relationship through which they had the right having ended
- British children whose parents or carers are relying on a right to reside derived from EU case-law
- Children and young people still in education who have an EU national parent who originally came to UK to work as an employee. This is also a type of derivative residence – see this page for more information).
EU rights of residence
The UK government has a page that provides updates on EU residence rights while Brexit negotiations continue. These rights on apply to EU citizens only; rights for people from Switzerland, Norway, Lichtenstein and Iceland are still being negotiated.
Currently the UK’s position within the EU has not changed. However, the UK government has stated that the UK is due to leave the EU on 29th March 2019 and that an implementation period will run from that date until 31st December 2020.
In June the government publicised its Statement of Intent on the EU Settlement Scheme, and in the following month published the Statement of Changes to the Immigration Rules. Please see our briefing on on-going concerns for children and young people for further information.
At present, when an EU citizen arrives in the UK they have an initial right to stay for 3 months. After 3 months, they continue to have a right to reside as a ‘qualified person’ if they are:
- studying (with comprehensive sickness insurance),
- self-sufficient or retired (with comprehensive sickness insurance), or
- looking for work.
This is otherwise known as ‘exercising treaty rights’. Family members can enter with or join an EU national who is doing any of the above, or who is permanently resident.
Extended family members
Extended family members may have the same rights as family members, but they will only be able to rely on them in UK if they have the documentation (biometric residence permit) showing that they met, and continue to meet, the rules.
A right of permanent residence applies to an EU national (and any of their family members who have been in UK), after they have been either exercising treaty rights themselves, or have remained the direct family member of an EU national who is a qualified person, for 5 years continuously. You can be out of the country for up to six months each year.
An individual can apply for citizenship after they have had permanent residence for a year. They will need proof of permanent residence to do so.
For further information on EU rights, family members and permanent residence, see our fact sheet on EU rights.
Changes to EU rights
The position on EU citizens’ rights in the UK following Brexit is within the Withdrawal Agreement. Whilst the agreement is not yet signed, both the European Commission and the UK government have agreed that the text will only be changed for technical, legal reasons. It is important to note that the position will not change for Irish nationals.
The UK government has said that they will apply more favourable provisions than the Withdrawal Agreement. The government has set out how the settlement scheme is likely to look in the UK in draft form. The current position, as far as it can be known, is that:
- Permanent residence will become indefinite leave to remain (ILR), also known as ‘settled status’. An EU national and their family members must apply for this new status before 30 June 2021.
- An EU national who, by the date they apply, has been living in UK for 5 years will be able to apply for indefinite leave to remain. Their spouse, civil partner or children will be eligible for settlement at the same time as the EU national even if they have not yet been in the UK for 5 years.
- Other family members including grandchildren, parents, or durable partners will usually be able to apply for ILR once they have been in the UK for 5 years.
- The government has said it is not going to apply any tests about whether EU nationals have been exercising their treaty rights – they will just have to demonstrate continuous residency. Someone can be absent from the UK for up to six months in any twelve and be considered continuously resident. This period can be extended in certain circumstances.
- The grant of status will be dependent on proof of identity, EU nationality, or for family members, a valid family residence card (BRP), and will be subject to a criminal record check.
- Every family member will be required to apply separately, and family applications will be linked together.
- People who arrive by 31 December 2020, but won’t have been living here lawfully for 5 years, will be able to apply to stay until they have reached the 5-year threshold. Anyone who has not completed 5 years residence will need to apply for a form of ‘pre-settled’ status by the deadline. They will then be able to apply for settled status after 5 years
- Family members who are living with, or join, EU citizens in the UK by 31 December 2020 will also be able to apply for settled status, usually after 5 years in the UK.
- EU Citizens and their families arriving during the implementation period (30 March 2019 – 31 December 2020) will be able to stay on the same basis but will need to register if they choose to stay for longer than 3 months
- Family members will be able to join EU citizens after exit, where the relationship existed on 31 December 2020.
This means that having identity documentation, proof of relationship with an EU national and proof of residency will be crucial. It is also important to note that some family members (extended family members who are not durable partners) and those with derivative rights of residence are not necessarily covered by this agreement (it is unclear whether children who are looked after by a parent or carer with derivative residence and who are EU nationals, might be able to rely on their EU nationality and presence in UK, directly).
The settlement application system has not yet started, but EU nationals can prepare by ensuring they have up-to-date documentation and that children have proof of their nationality.
It is important that legal advice is sought as a matter of urgency where there is uncertainty over someone’s status – particularly for those children and young people who are looked after, or who are care leavers.
The government is committed to making the application process as ‘streamlined, quick and user-friendly as possible’, designing an online system that will cross-reference to existing government data, such as HMRC’s income tax and employment records and Department of Work and Pensions databases. Applicants will need to provide an identity document and recent photograph to confirm their identity and nationality, as well as declare any criminal convictions.
For those who have not been working, they will not be able to demonstrate any record with HMRC and so may have to provide other evidence of residency such as utility bills, tenancy agreements, council tax bills or bank statements.
The Immigration Minister has said that the application fee will be £65 for adults, and £32.50 for children under 16. There are no fee waivers or exemptions, however for those who already have a valid permanent residence document it will be free.
Children in care or looked after by a local authority
Children who are not with their parents in the UK but who are EU nationals, or are family members of EU nationals, may face a number of obstacles to demonstrating their entitlement to reside in the UK, particularly on turning 18. Some are taken into care with minimal or no enquiry into their legal status. Many cannot evidence their EU nationality if they have lost connection with parents (despite knowing they are EU nationals). A child may have already acquired permanent residence but not be able to evidence this.
It is very important that local authorities are able to identify all the children in their care who may be affected and ensure that they are not excluded from the settlement process. Where a child or young person is the family member of an EU national, they will need support to demonstrate this and any information which may relate to their nationality.
Many EU member states also have specific requirements that must be met before they will issue children’s passports. For example, they may require the explicit involvement and consent of both parents – and they will not issue the nationality documentation without it. They will not deal with a ‘corporate parent’ – such as a local authority – where the young person is looked after but with the parent’s consent under section 20 of the Children Act 1989. Where there is a single parent who has lost touch with the other parent, some embassies ask for a family court order stripping the absent parent of rights and responsibilities. In these cases it may be necessary to obtain family law advice on evidencing sole parental responsibility.
Children and young people who are unable to show that they meet the requirements for permanent residence as individuals may be able to meet the requirements for settled status as part of a family. Currently the solution for some of these children may not be based on EU law – they may need to apply for indefinite leave to remain, and/or for British citizenship (see below).
It is usually crucial that applications are made before a child turns 18, and that the responsible local authority arranges for them to receive quality legal advice.
In some cases a child may have British citizenship. Government guidance contains information on whether an EU national child might be automatically British, and not need to register to become a UK citizen.
In some cases a child may already have British citizenship. If a child was born in the UK to a parent who was ‘settled’ at the time of birth, then they are automatically British.
Due to different interpretations of ‘settled’ for European nationals, a child will be automatically British if they were born in the UK and:
- They were born before 2 October 2000 to an EU national who was exercising treaty rights
- They were born between 2 October 2000 and 30 April 2006 to an EU national who had Indefinite Leave to Remain (ILR).
- They were born on or after 1 May 2006 to an EU national who had permanent residence, whether or not they had made the application.
During this time, the EU expanded, with eight countries joining in 2004, and a further two (Romania and Bulgaria) joining on 1 January 2007. These countries were subject to restrictions which can have an impact on whether or not a child was automatically British.
Not all EU countries allow their nationals to hold dual nationality, so someone considering either automatic entitlement or registration should check with the embassy of their country of nationality beforehand.
Practical steps to take
- Seek legal advice about your status and your entitlements.
- Consider whether you are able to make a permanent residence application now – for example, if you can evidence 5 years of working in the UK. You must still apply to convert this into a document showing your settled status but to do so will be free of charge and may prove quicker and easier.
- If you have been in the UK for at least 5 years continuously, consider how you will be able to demonstrate this. It is important that you obtain ILR if you are able to, as access to benefits and other services will still be subject to a right to reside test if you have limited leave.
- Gather documentation that could be useful for any potential application if you have not worked continuously in the UK for 5 years. The government has produced a list of example evidence. This list is in two parts and is non-exhaustive. Other possible evidence that shows you have been in the UK might include payment for nursery, prescriptions, or letters from school or a social worker for a looked after child. Remember that a child can rely on the evidence that their parents obtain. If you only have evidence on the second list, you will need to show that you have been in the UK for 6 months of every year.
- Check you have a national passport or if you are able to obtain one. You may need to contact your Embassy for more information.
- If you are an extended family member, such as a durable (unmarried) partner, ensure that you have an up-to-date family residence card (BRP) and renew this if it will expire before you apply for settlement. If you do not have, or cannot obtain, a valid family residence card, you should seek legal advice about how you can evidence the barriers to obtaining this.
- Spouses and children can demonstrate that they are family members through official documents (marriage certificates or birth certificates) so make sure you have these, or obtain new copies.
- If you have a derivative right of residence you are unlikely to qualify under the new settlement scheme unless you are also an EU national. You should seek legal advice as soon as possible. The government has confirmed they will make routes available for these individuals and their families, but they are unlikely to qualify for the EU settled status.
Other useful resources:
 See Annex A of the Statement of Intent: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/718237/EU_Settlement_Scheme_SOI_June_2018.pdf