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 and the Draft Withdrawal Agreement.
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 and the settlement scheme
The UK is leaving the EU on 29 March 2019. The arrangements for managing this are outlined in the Draft Withdrawal Agreement (DWA), under which the rights currently enjoyed by EU nationals and their family members in the UK will continue until 31 December 2020. This is known as the implementation period.
Under the DWA, any EU nationals/family members resident in the UK by the end of the implementation period (31/12/20) would need to apply to the EUSS by 30 June 2021 to secure their rights/status.
During the implementation period, like now, 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.
What about ‘no deal’?
If the UK leaves without a deal, the DWA and implementation period will not apply, but the EUSS will go ahead anyway. Existing EU rights will continue for people resident in the UK on 29/3/19 only, and instead of a deadline of 30 June 2021, those eligible to apply to the EUSS would need to do so by 31 December 2020 at the latest.
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. It is possible to apply from 21 January 2019 under the public test phase, so long as you are a resident EU national with a digital passport, or a family member with a UK-issued family residence card. The full scheme opens on 30 March 2019.
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. However, if the UK leaves the EU without a deal, this may be subject to change.
Documents are in the form of a credit card-style biometric residence permit (BRP). By contrast, 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.
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/BRP and a photo of the applicant. The application then moves online for a fee to be paid and a data check (initially against HMRC and DWP records) to happen. Applicants also have an opportunity to upload scanned alternative evidence of UK residence, such as bank/tenancy documents or GP records. Exercise of Treaty Rights does not have to be proved – residence in UK is what is being checked here, which is a radical simplification.
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?
Further refinements of the EUSS are expected when the scheme opens fully on 30/3/19. These should be:
- A fee will no longer be required.
- It should be possible to apply using an ID card rather than a passport.
- It may be possible to apply using an iPhone
- There will be a roll-out of ‘assisted digital’, where you can attend a centre to get help
- Information will be available in all 23 EU languages
- It will be possible to apply by post
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, 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. 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. An adult with permanent residence can, if they choose, naturalise as British. However, a successful application under EUSS is not currently a route to British citizenship, although this may change in the future. 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.
Problem areas
Derivative rights cases, which almost always involve children, are not included in EUSS and for the time being will continue to be covered by the 2016 Regs. Amendments are expected, but there is concern that in the event of a ‘no deal’ and revocation of the 2016 Regs, these families will be left vulnerable.
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
Useful Links
