The latest on Settled Status application and the Brexit effect

Ever since the UK voted to leave the EU, one of our biggest concerns as Immigration lawyers in London has been the impact this will have on EU and EEA nationals living in the UK. The need to avoid a repeat of the Windrush effect will be firmly in the minds of those working out the best way to set up the settled status application process that will form the keystone of the arrangements for EU citizens living in the UK beyond 2020.

If the current scandal around the treatment of Commonwealth citizens who came to the UK in the mid-20th Century can teach the UK one thing, it’s that they need to get their act in gear as far as EU and EEA citizens living in the UK is concerned. After much uncertainty in the aftermath of the Brexit vote, the UK reached an agreement with the EU in December 2017. The agreement is reflected in a draft treaty published in March 2018, designed to avoid a negative Brexit effect for these individuals, many of whom have made their lives here in the UK.

The key points of the agreement are that

- EU citizens living lawfully and continuously in the UK for a least 5 years before 31 December 2020 can make a settled status application. Settled status means that they will be able to stay in the UK indefinitely, with access to public funds and services. They can then go on to apply for British Citizenship should they choose.

- EU citizens in the UK on that date but who can’t fulfil the 5 years’ residence requirement can apply to stay in the UK until they have 5 years’ residence, when they can then apply for settled status.

- EU citizens who arrive in the UK after the date we leave the EU but during the transition period will also be able to register for temporary residence status after 3 months, with a view to obtaining settled status after 5 years.

The draft treaty also includes arrangements covering family members, and extends beyond the 31 December 2020 cut off, as long as the relationship already existed at that date. Those hoping to make an EEA application will have to wait while negotiations continue between the UK government and those of Norway, Iceland, Lichtenstein and also Switzerland.

So, as Immigration lawyers in London, what can we say about the settled status application at this point? The new system is intended to be in place later in 2018. No one is 100% sure what form the Settled Status application will take, although the Government has published information on its website with some information. It is consulting with people currently involved in the Immigration system at every level.

From what we understand

- There will be an online application via an app, with the option to submit a paper-based application

- Applicants will need to provide an identity document and a recent photograph and declare any criminal convictions

- Most of the information that is needed to support your settled status application will be gathered by the government from existing records from DWP and HMRC. These will be linked to the app so that the information is already there – no need to search for your own records.

- Where evidence is missing, or Government records are incorrect, applicants should be able to back up their settled status application with other documents.

Although the Government indicated that the settled status application would apply to individuals working in the UK and exercising their Treaty rights, Immigration Minister Caroline Nokes, has suggested that it will be a simple question of the EU citizen establishing residency in the UK for the 5-year period. There are clearly many matters to be ironed out, but it seems that the system is to be biased towards allowing settled status in the majority of cases. Settled status is only likely to be refused in the case where someone has a serious criminal conviction.

EU citizens who have not been in the UK for 5 years by the end of the transition period will be able to stay in the UK but will need to apply for a temporary residence status by 30 June 2021. They will then be able to stay long enough to acquire 5 years’ residence and then apply for settled status.

If an EU citizen comes to the UK after we have left the EU but before the end of the transition period, they will be able to live and work here but will have to register for temporary residence status after 3 months. He or she can then stay to acquire 5 years’ residence and apply for settled status.

As leading Immigration lawyers in London, we’ve seen the way that the Windrush effect has devastated the lives of many of those who have been living legally in the UK for years. In the same way, many EU citizens in the UK have been living in a cloud of uncertainty about their future. In a move that has uncomfortable echoes of the Windrush effect, the opportunity to apply for settled status, or to obtain the temporary residence status that will then allow them to accrue 5 years’ residence, will only remain open until 30 June 2021. People who miss this deadline may find themselves in a similar situation to the Windrush generation – something we would hope can be avoided at all costs.