EU right and permanent residence or settled status?

Another week closer to Brexit and the day that the UK leaves the EU, another week where many EU citizens will be considering whether to apply for permanent residence in accordance with their EU rights or wait for the opening up of the settled status application. Like many top Immigration law firms in London, here at OTS Solicitors, we’ve been considering the best possible outcome for our EU citizen clients. Our Immigration solicitors have been advising a number of individuals on evidencing their EU rights through permanent residence or waiting for the settled status scheme to open.

Many EU citizens will be asking their Immigration lawyers the question - what is the difference between permanent residence and settled status. It is understandable for anyone to consider the best outcomes for settling in the UK. In simple terms, permanent residence is evidence of an EU citizen’s right to be in the UK. The rights come from EU law, not from UK law. Once an EU citizen has been exercising EU Treaty rights in another EU country for 5 years – working, looking for work, studying etc, they automatically acquire the right to permanent residence in that country. The same is true for EEA nationals. permanent residence is the mechanism that the UK uses to make it easier for an EU citizen to prove that they have this right to permanent residence. Once the application is finalised, it is then straightforward for the individual to show anyone who might need to know that he or she has the right of permanent residence. This can help with ‘right to work’ checks, or applications for benefits, for example. As Legal 500 recommended solicitors, OTS has successfully supported a number of clients in their permanent residence applications.

Settled status is the new form of leave that the UK Government is introducing for EU and EEA citizens. It is designed to answer the concerns of the thousands of EU citizens who have made the UK their home over the last few decades and are concerned that Brexit will jeopardise their future here. Although the scheme has not finally been approved by Parliament, some of the finer details of what the scheme will look like have been announced recently.

Although the settled status scheme is gathering momentum and will, we are told, be open for applicants in March 2019, our Immigration solicitors are advising clients who have the choice of permanent residence or the new settled status to elect permanent residence.

i) The Guidelines of 29 April 2017 state that the Brexit negotiations may seek to determine transitional arrangements which should be in the interest of the Union. Such transitional arrangements would be based on Article 50 of the Treaty on European Union and would by their very nature be for a limited period of time. During such a potential transitional period, every aspect of EU law would continue to apply in the United Kingdom.

ii) Rights of third country nationals in the ascending line (parents and grandparents) and dependents would enjoy rights of family unification not available to those with settled status under UK immigration law.

iii) EU citizens who marry or enter into civil partnerships before 31 December 2020 will continue to enjoy the protection of EU law.

iv) EU citizens and their family members who arrive in the UK before the end of the transition period will only be entitled to make residence applications six months from 31 December 2020.

The Commission set out its position in the ‘Essential principles on citizens’ rights’ published on 12 June 2017. On 26 June 2017, the United Kingdom published the document ‘The United Kingdom’s exit from the European Union - Safeguarding the Position of EU Citizens Living in the UK and UK Nationals Living in the EU’.

The principles underlying the Union’s position are that the Withdrawal Agreement should protect the rights of Union citizens, United Kingdom nationals and their family members who, at the date of withdrawal, have enjoyed rights relating to free movement under Union law, as well as rights which are in the process of being obtained and the rights the enjoyment of which will intervene at a later date.

The Government has accepted that the Court of Justice of the European Union will remain the final arbiter of the interpretation of EU law for the rights of EU citizens.

According to the new arrangements for settled status, those with permanent residence will be able to convert to settled status once the scheme is up and running at no extra cost. Although eventually, permanent residence will be removed – once the UK leaves the EU – it is certainly worth pursuing to ensure full EU protection for the time being.