This fact sheet provides an explanation of the arrangements for securing the rights of EU citizens residing in UK under the EU settlement scheme, following the vote for the UK to leave the EU. This fact sheet is correct as of 25 November 2019.
To view more information on EU law rights, including for children in care and those with derivative rights, click here.
Please note that, for ease of reference, we are using the terms EU and EU citizens, but these terms will also cover rights of citizens of EEA and Switzerland unless specifically stated otherwise.
Brexit dates, deals and the settlement scheme
The UK is currently due to leave the EU on 31 January 2020.
If there is a deal, any EU nationals/family members resident in the UK by the end of the implementation period (31 December 2020) would need to apply to the EUSS by 30 June 2021 to secure their rights/status.
If there is not a deal, the EUSS will still apply, although the date that EU nationals and family members will have had to live in the UK by would be 31 January 2020. Those eligible would need to apply to the EUSS by 31 December 2020.
During the implementation period or before leaving the EU without a deal, EU nationals and family members will be able to rely on their passports and ID cards to evidence their right to live and work in the UK.
The Home Office published a ‘statement of intent’ for the EUSS on 21 June 2018, and the Department for Exiting the EU published a policy paper on Citizens’ Rights (including rights under ‘no deal’ and for UK nationals living in the EU) on 6 December 2018. Links can be found at the end of this fact sheet.
EU settlement scheme in context
The EU settlement scheme (EUSS) is a new scheme which aims to secure the status, and to document, everyone who is in the UK under EU rights after the UK leaves the EU. The rules are contained in Appendix EU. Some people already have status under the pilot phases of the scheme. It is expected, although not required at this stage, that most EU nationals/family members will apply to the EUSS as soon as they can.
Under the current arrangements, which in the UK are the Immigration (EEA) Regulations 2016 (‘the 2016 Regs’ – enacting the Citizens Directive EC2004/38 – see our rights of residence for EU nationals fact sheet) it is not necessary for EU nationals or family members to hold UK-issued documents. However, extended family members such as durable (unmarried) partners do need documentation, and in practice so does anyone relying on derived rights, in order to access services.
The 2016 Regs will eventually be revoked, but it is expected they will continue during the implementation period (if there is one). However, if the UK leaves the EU without a deal, this may be subject to change.
Documents showing immigration status are normally in the form of a credit card-style biometric residence permit (BRP). By contrast, most successful EUSS applicants are sent an email with a link to a digital document confirming their status. This is also available to check online. No physical documents will be issued – although some applying under the scheme will get one.
How is the EUSS working at the moment?
The application is started by using an android device to send personal data: a scan of the biometric passport/identity card and a photo of the applicant. The application then moves online and a data check is carried out(initially against HMRC and DWP records). Applicants also have an opportunity to upload scanned alternative evidence of UK residence, such as bank/tenancy documents or GP records. A criminal record declaration will also be made (if under 18). Exercise of Treaty Rights does not have to be proved – residence in UK is what is being checked here.
If an applicant can evidence 5 years’ residence in the UK, they should be given indefinite leave to remain (settled status). Anybody who already has an EU permanent residence card will be able to (also) get a digital document showing settled status.
Applicants with under 5 years’ residence should be given limited leave to remain (pre-settled status).
Phased implementation: when should I apply?
Anyone who has been in UK for over 5 years but has not exercised Treaty Rights (or lacks evidence, or is unable to show they are the family member of someone who has), is better off under the EUSS than under the EEA regs, so they may want to apply as soon as possible.
Children in the care of a local authority, who might struggle to establish rights under the 2016 Regulations, will almost always be best advised to make an application to EUSS. However, they will usually also need specialist legal advice about British citizenship (and dual nationality), and accessing their rights to these effectively. Suitability (criminality/ character) issues and nearing leaving care without settled status may make their advice needs urgent.
Should I apply for permanent residence or under EUSS?
If a person qualifies for permanent residence under the 2016 Regulations (through exercise of Treaty Rights/being a ‘qualified person’), then it might be useful to establish that this is the case before applying under the EUSS. This is because there is a possible impact on British citizenship rights for adults wanting to naturalise, and sometimes for children wanting to show they were born to a settled EU parent. It may be faster for an adult to naturalise as British with permanent residence. Permanent residence can also apply retrospectively, where EUSS cannot. This may affect the rights of children born to an adult with permanent residence. For more information on children’s nationality applications see our fact sheet.
Complex cases
Derivative rights cases, which almost always involve children, are technically included in the EU settlement scheme but are more complex than applications made by EU nationals and their family members. Some derivative rights, particularly Zambrano, have stringent eligibility criteria to meet in order to make a successful applications. Guidance on Zambrano applications under the EUSS has still not been published.
Estranged family members, including non-EU direct descendants over 21, should be able to apply under the EUSS if they were initially issued with a BRP showing their entitlement under the 2016 Regs.
Former durable partners of EU nationals who are carers of young children are not covered by Appendix EU (or the 2016 Regs) and should seek legal advice.
Individuals with criminal records and periods of imprisonment may require legal advice on how past offences will impact their application to the EUSS.
Useful Links
