EU settlement scheme (EUSS)

The UK is currently due to leave the EU on 31 October 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.

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 31/10/19 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.

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. The scheme opened 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.  

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).

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.

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.

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.