Information for EU nationals following BREXIT

Adieu

The free movement rights of EU Citizens are now at an end. Those who have been resident in the United Kingdom prior to the 31st December 2020, may preserve them through applying for pre settled status or settled status under the Immigration Rules. There is a grace period up to the 30th June 2021 to do so.

Different Types  of EU  Citizen

These two categories may already have Indefinite Leave to Remain and would be eligible to apply for naturalisation as a British Citizen. See the separate entries under the Practice Notes for the two different categories of EU nationals.

EU Citizens who have arrived since 1988 and resided in the United Kingdom prior to the 31st December 2020, ( included those who have left ) , should apply for “ pre settled status” or “ settled status” under Appendix EU to the Immigration Rules.

For EU Citizens who are coming to the United Kingdom from the 1st January 2021, they will need to do so under the UK Immigration Rules. In essence, students and employees will need to find sponsorship from a licenced UK employer or educational institution, spouses will need to meet a financial requirement whilst visitors will be circumscribed in their activity.

The UK Immigration Scheme.

It is vitally important to understand the conditions which are attached to an individual’s permission to remain. These define what a person cannot do. What these conditions are , and the criteria to be allowed to stay in the UK, are set out in the Immigration Rules.

Applications to remain in the United Kingdom , require a visa obtained from outside of the United Kingdom and there are only very limited circumstances where a visitor can switch to another category of the Immigration Rules after arrival.

The nature of the Immigration Rules require an applicant to comply with prescriptive procedure and to prove their genuine intention. The Immigration Rules are convoluted and difficult to read. They are frequently changing . There were seven Statement of Changes to the Immigration Rules in 2020 and fifteen such in 2019 and on average nine Statement of Changes every year for the last nine years, running from a dozen to several hundred pages of amendments on each occasion. An application will be decided by the Law at the date of decision and not application.

In addition to the specific requirements of each category, there exists“ the General Grounds for Refusal.” Every applicant needs to be aware of these General Grounds, as they are applied to the consideration of each application to enter or vary permission in the United Kingdom. A finding of dishonesty in a previous visa application leads to a mandatory exclusion for 10 years. A previous breach of conditions of stay will lead to an exclusion of between 1 and 5 years.

Additional to the regime of Immigration control there are a welter of laws that form part of the " hostile environment", that remain in place. Individuals without documented permission to remain will not simply be without status, but they will find themselves subject to checks and exclusions with regards to accommodation and other forms of social need.

At MAGNE & CO, we are here to guide you through the new regimen. Of this, the first lesson, is that the previous acquis of Citizenship rights and an equality of standing has been replaced by conditional entry at discretion and a febrile tolerance. New arrivals need to be aware.

Surbiton 5th January 2021

DEADLINE FOR APPLICATIONS UNDER THE EU SETTLEMENT SCHEME

Under the Withdrawal agreement with the EU, the UK left on the 31st January 2020 and transitional provisions permitting the continuation of EU Law will expire on the 31st December 2020.The deadline for extending transitional provisions under The Withdrawal Agreement has passed on the 1st July 2020

EU Citizens whose presence is derived entirely from the exercise of Free Movement Rights , who have not applied for either pre settled or settled status will then become overstayers as of the 1st January 2021.

The Home Office website as of the 4th August 2020 gives EU Citizens up to the 30th June 2021 to make an application under the EU Settled status scheme.

“ If you’re an EU, EEA or Swiss citizen, you and your family can apply to the EU Settlement Scheme to continue living in the UK after 30 June 2021. If your application is successful, you’ll get either settled or pre-settled status.”

It is not clear what is the legal basis of any such presence between January to July 2021. If there is no such basis, then there would be a risk that future decision holders may dispute the continuity of lawful presence , or assert that any rights acquired prior to a departure from the United Kingdom might lapse.

However the grace period may be applied, EU Citizens should avoid reliance upon it. It is vital that applications under the EU Pre settled and Settled status scheme are made now.

Surbiton - 4th August 2020

Settlement Status for EU Nationals

The UK Government has outlined the scheme whereby EU nationals present in the United Kingdom by 31st December 2020 will have their rights protected.

The scheme does not envisage that rights that have been acquired will be automatically respected but that they will continue to be so contingent upon an application for the new “ settled status” under forthcoming Immigration Rules. The broad out line of the scheme are:

• EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for ‘settled status’, enabling them to stay indefinitely. 
• EU citizens and their family members who arrive by 31 December 2020, but will not yet have been continuously resident here for five years, will be eligible for ‘pre settled status’, enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status, where they have remained continuously resident here .
• EU citizens and their family members with settled status or pre-settled status will have the same access as they currently do to healthcare, pensions and other benefits in the UK, according to the same rules as now.
• Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will still be able to join an EU citizen resident here after the end of the implementation period, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. Future children are also protected.”

Once an applicant’s identity has been established through the on line application , then automatic checks will be made with the HMRC and the DWP to establish continuous residence in the United Kingdom. Presumably , these checks will also determine if a person has undertaken an economic activity that triggers the entitlement to settlement. Where the checks cannot prove residence then the applicant will be able to upload evidence.

Evidence of status will also be given in digital form, with no physical document being issued. The EU citizen will now fall within the general Immigration Scheme, and would be required to share these details with any potential employer, or landlord.

Because EU rights will not continue, but may be preserved contingent upon an application under the Immigration Rules, then there is a risk that even those who do apply will lose some form of facility with regards to British Citizenship. For example:

Applicants who have acquired Permanent Residence under EU Law may rely on a presence of more than six years to permit an immediate application for naturalisation once the Residence Card is received. There is no guidance to state whether new settled status will permit this, or whether applicants will need to wait a year before applying for British Citizenship.

Children of EU nationals who have been resident in the UK for more than six years may be eligible for registration as a British Citizen without the formality of applying for an EU Residence card. It is likely that in the future a new settled status will need to be sought before hand.

If a decision on the Permanent Residence Card is likely before the 29th March 2019, then the advantage in applying now continues. With the passage of time over the forthcoming months, the expectation of so receiving diminishes entailing the possibility of making repetitive applications.

Surbiton 2nd July 2018.

United Kingdom's Proposals for EU Residents on BREXIT

The United Kingdom has now published its proposal for EU nationals resident here following BREXIT. The proposals relate to the implementation of a new Immigration status .

A new settled status will be offered to those EU nationals who have qualified for permanent residence under EU law by the time of the cut off date of the 29th March 2021. It is currently suggested that applications for this status may commence in September 2018.

 EU nationals will have to have been resident in accordance with the terms of Directive 2004/38.

There remains uncertainty on what is deemed to be resident , or continuous residence. From the 29th March 2019, only close family members will be allowed to join EU nationals in the UK.

At the time of the referendum, it was important that EU nationals understood that their position remained secure until the United Kingdom left. It warranted some delay to see how the dust may settle before considering the necessity of applying or not.

There are some who view that the future requirement to obtain a “ settlement card” as proposed by the negotiating paper renders any application now, pointless. There is some force in this argument, particularly where the applicant may be elderly with little intention of traveling.

Generally there are advantages to applying now: The Home Office Internal Guidelines to Case Workers of April 2017 would imply a simpler consideration process: The Executive’s disarray of the last year does little to instill confidence for the future.

Where a person’s ultimate intention will be to apply for British Citizenship, then delay brings no advantage at all. Those who had applied for a Permanent Residence Card shortly after the Referendum are now traveling on their British Passports.

- Surbiton 20th February 2018

The BREXIT decision - what it means to EU nationals

“The crisis consists precisely in the fact that the old is dying and the new cannot be born” — Antonio Gramsci

Answers solicited in the maelstrom of uncertainty may obfuscate. Caveat aside: -

Under Directive 2004/38 and the EU Treaty, EU Nationals have the right of free movement and provided that certain conditions are met, acquire permanent residence after five years.

Although these rights derive directly from the EU legislation, this legislation only has effect because of an UK Act of Parliament. If the UK Act of Parliament is repealed these rights will no longer continue to apply to those who enter after repeal.

The question arises about the rights that may have been accrued by EU Citizens before any such repeal. In principle, EU nationals who hitherto have not required leave to enter or remain, because they have enjoyed the right of free movement , may be required to do so. However, Article 70 of the Vienna Convention on the Law of Treaties protects the acquired rights of individuals in the event of a withdrawal from a Treaty.

What the position taken by the UK authorities will be, is beyond our remit to speculate. However, where there is no new position taken permitting free movement to EU new arrivals , then even if acquired rights are protected, it will be to the advantage of those already present to obtain a Residence Permit, so that they can distinguish themselves from new arrivals.

Those EU nationals who have been resident and economically active in the United Kingdom for the past six years, may consider the benefit of applying for British Citizenship. Similarly spouses of EU nationals may wish to consider their eligibility.

- Surbiton 25th June 2016