EU Settlement Scheme Contents

2The EU Settlement Scheme

EU citizens’ entitlement to permanent residence

6.In 2017 there were estimated to be 3.8 million EU citizens living in the UK.1 Under current EU law2 EEA nationals3 and eligible family members4 acquire an automatic right of permanent residence in host member states in which they have legally resided for a continuous five-year period.5 During this time they must have been exercising their rights under the Treaty on the Functioning of the European Union as a qualified person under free movement.6 As this is an automatic right, there is no need for EEA nationals to apply for permanent residence in countries such as the UK and there is no fee required to obtain the status. There is also no requirement in the UK to obtain a registration certificate, as is the case in some EEA member states. EEA nationals can apply for a permanent residence document which confirms their status, but this document does not itself confer status.

The EU Settlement Scheme

7.Under the UK’s Withdrawal Agreement, free movement would continue until the end of the transition period on 31 December 2020. After that, the legal status of EU citizens residing in the UK will derive from a status granted by the Government’s proposed EU Settlement Scheme, which opened on 30 March 2019. The Scheme provides new immigration categories of ‘settled status’ and ‘pre-settled status’ for EU nationals and their family members lawfully residing in the UK. The Government would provide a statutory basis to the EU Settlement Scheme through the expected Withdrawal Agreement Bill.

8.Settled status is available to EU citizens who have accrued five years of continuous residence in the UK prior to 31 December 2020.7 Those who moved to the UK prior to 31 December 2020 (or the date of the UK’s departure from the EU in the case of a ‘no deal’ scenario) but who have not yet lived in the UK for five years may be eligible for pre-settled status.

9.Appearing before us in February 2019 the Home Secretary, Rt Hon Sajid Javid MP, emphasised that the Government wished to provide:

reassurance and confidence for all the EU citizens that are here in the UK that we not only want them to stay, we want to make it as easy as possible, we want to protect their rights. We will do all we can to do that and communicate that as much as we can.8

He later added that “We want them all to stay”.9

Eligibility

10.Individuals need to apply to the EU Settlement Scheme if they are EU citizens or a family member of an EU citizen (unless they have Indefinite Leave to Remain, distinct from permanent residence under EU law, or have British citizenship). This includes people who were born in the UK who are not British citizens, and those who are from the EU but married to a British citizen. Individuals from outside the EU can apply if they are in a relationship with an EU citizen as their spouse, civil partner or unmarried partner. They can also apply if they are related to an EU citizen, their spouse or civil partner as their child, grandchild or great-grandchild (under 21 years old), dependent child (over the age of 21), or dependent parent, grandparent or great-grandparent. Individuals will not usually be eligible to apply if they are from outside the EU and married to a British citizen.10

11.Irish citizens and those with indefinite leave to remain are able to stay in the UK without applying (although those with permanent residence documents do need to apply as these documents will not be valid after 31 December 202011), and the UK has reached agreements with Norway, Iceland, Liechtenstein and Switzerland.12 In March 2019 it was announced that resident citizens of these nations, and their family members, will be able to apply for UK immigration status under the Scheme, in line with the earlier agreements.13

Rights

12.If the draft Withdrawal Agreement is completed, an individual with settled status will be able to stay in the UK for as long as they like, apply for British citizenship (if eligible), work in the UK, use the NHS, enrol in education or continue studying, access public funds such as benefits and pensions (if eligible), travel in and out of the UK, and bring close family members to the UK after 31 December 2020.14 Any child born in the UK to a citizen with settled status would automatically be a British citizen, and individuals with settled status should be able to spend up to five years in a row outside the UK without losing the status (although this allowance to individuals with settled status is subject to approval by Parliament).

13.Individuals granted pre-settled status would retain many of the same rights but would only be able to spend two years in a row outside the UK without losing the status. Any children born to such an individual in the UK after they received pre-settled status would only be a British citizen (at birth) if they qualified for it through their other parent, though they would be automatically eligible for pre-settled status. An individual can stay in the UK for a further five years from the date of receiving pre-settled status, but they must apply again and get settled status if they want to stay for longer. Applying to change status from pre-settled to settled status can be done as soon as the individual has five years’ continuous residence.15

14.The3million, an organisation which campaigns for EU citizens’ rights in the UK, has compiled a list of 181 (initially 162) questions to the Home Office about various aspects of the qualifications for and functioning of the EU Settlement Scheme.16 Many of these are yet to be answered by the Home Office and have not, according to the3million, been satisfactorily resolved by information published in any Government documents. These include questions on the criteria and eligibility for settled status applications, reasons for loss of settled status, the consequences of rejected applications, the rights of citizens with settled status, and the functioning of the Independent Authority (the non-departmental public body which will be established to receive complaints and take action in the case of failures within the Scheme).

15.The EU Settlement Scheme is now live, but there remains a lack of clarity over many aspects of the Scheme. The Home Office must provide full responses to the questions posed by the3million regarding the Settlement Scheme. It is disappointing that it has not yet done so, as some of these questions were first raised almost a year ago. EU citizens in the UK need certainty, and the Government should give it to them. We address some of these concerns specifically in this report.

Application process

16.Following a number of test phases, the EU Settlement Scheme opened on 30 March 2019. Under the draft Withdrawal Agreement the deadline to apply for settled status is 30 June 2021. Applicants can apply online and will need to prove their:

The Government has said that it expects most applicants to receive a decision within two weeks.

17.The Government initially outlined that the fee to apply for settled status would be £65 for adults, and £32.50 for those under 16. However, on 21 January 2019 the Prime Minister announced that the Government would waive the application fee “so that there is no financial barrier for any EU nationals who wish to stay”,17 and on 7 March 2019 the Home Secretary laid the relevant statutory instrument before Parliament.18 The Home Secretary told the House of Lords’ EU Justice Sub-Committee on 17 April 2019 that the Home Office had processed all customer refunds and that they would reach customer accounts in the following days.19

18.However, it has emerged that some applicants are still having to pay in the course of their application. Recent media reporting has revealed that calls to the EU Settlement Resolution Centre, the official Home Office helpline available to support EU citizens in making an application to the Settlement Scheme, cost up to 10p a minute from landlines and up to 40p per minute from mobiles20 (although the Home Secretary explained that the Home Office does not charge or receive revenue for this service, and that the costs would be limited to those charged by network and service providers21). During the second pilot test phase the EU Settlement Resolution Centre received 15,000 calls and emails, and the3million has said that some applicants have had to make several 20-minute calls to the helpline in the course of their application.22 Home Office staff were unable to provide inspectors from the Independent Chief Inspector of Borders and Immigration (ICIBI) with information on average call length but worked on the understanding that “a call takes as long as it takes”.23 As discussed later in this report, fees are also payable if individuals need to use designated application centres to upload documents.

19.The Government must make calls to the EU Settlement Resolution Centre free to applicants. The goodwill extended to EU citizens through the Government’s scrapping of the application fee will be undermined if they are charged to access advice and guidance about their application.

Relationship with Brexit and future immigration policy

The Settlement Scheme in a ‘no deal’ scenario

20.The Government has stated that, in the event of ‘no deal’, EU citizens and their family members already resident in the UK will be welcome to stay “and we want them to do so”,24 adding that “the Home Office will be looking to grant status, not for reasons to refuse”.25 The Home Secretary similarly told a House of Lords Committee, “I want everyone to stay. I want to make it as easy as possible”.26

21.Government guidance has confirmed that, in the case of a ‘no deal’ Brexit, the operation of the EU Settlement Scheme will remain the same. The timeframe will, however, be shortened. Under a ‘no deal’ scenario, settled status would only be available for EU citizens resident in the UK before the UK leaves the EU, rather than 31 December 2020. Those who qualified would then have only until 31 December 2020 to put in their application to the Settlement Scheme. The ICIBI reported that Home Office officials recognised that the earlier cut-off date following a ‘no deal’ Brexit would place additional pressures on Settlement Scheme casework.27

22.Steve Peers, Professor of Law at the University of Essex, has noted that while the Settlement Scheme for EU citizens will work in much the same way after a ‘no deal’ Brexit, this would not be an international law obligation. This means that the UK Government would be free to change the details at some later date: it could have stricter rules on what happens when workers become unemployed, could make the definition of ‘worker’ more restrictive, or change the qualification criteria for permanent residence. The Government has said that it does not intend to do so, stating that the basis for qualification would remain the same in a ‘no deal’ Brexit as under the planned scheme.28 The ‘Costa’ amendment which achieved cross-party support during ‘meaningful vote proceedings’ sought to oblige ministers to seek to ring-fence the citizens’ rights provisions of the draft withdrawal agreement, so that these rights would be underpinned by international law, even if there was no agreement on other aspects of withdrawal.

23.The3million voiced concern over the shortened deadline, as it gives more than three million people less than two years to apply for a new immigration status with no grace period.29 Free Movement has also highlighted that, in a ‘no deal’ scenario, citizens would have no right of appeal to an immigration judge. Instead, there would be an internal administrative review or judicial review to challenge a refusal of settlement under the scheme. The draft Withdrawal Agreement enshrines a right of appeal before a judge and an “independent authority” to police breaches of citizens’ rights, but without an Agreement these provisions would be lost.30

24.EU citizens with settled status would be able to be joined in the UK, by 29 March 2022, by existing close family members such as children, spouses and partners, parents and grandparents living overseas at exit, where the relationship existed by the date of the UK’s departure from the EU (or where a child was born overseas after this date) and continued to exist when the family member applied. After 29 March 2022, such family members would be able to join EU citizens here by applying through the applicable UK Immigration Rules. EU citizens with settled status would be able to be joined by future spouses and partners (where the relationship was established after exit) and other dependent relatives until 31 December 2020, after which point the UK Immigration Rules would apply to such family reunion. This would bring the rights of EU citizens into line with the rights of UK nationals from 30 March 2022.

25.The Government’s plans for a ‘no deal’ scenario would leave EU citizens less than two years to apply under the Settlement Scheme. After this point, there would be considerable uncertainties about their status in the UK. Given this risk, there is no reason why the timeframe for applications should be curtailed compared to the circumstance of the UK leaving the EU with a deal. We also see no reason why an appeal right should only be available in the event of a withdrawal agreement being reached. Such an appeal should also be available if there is ‘no deal’. The same applies to the independent monitoring authority. We also call on the Government to redouble efforts to seek a ring-fenced agreement on citizens’ rights, and to update Parliament on what progress it is making and what obstacles remain.

Post-Brexit immigration

26.If the UK agrees a deal with the EU, “EU citizens and their family members will be able to move to the UK during the implementation period on the same basis as they do today [ … ] there will be no new constraints on working or studying in the UK in the implementation period”. If they wish to stay for longer than three months they will be required to register with the Government, in advance of the implementation of the UK’s new immigration framework (the details of which are yet to be confirmed).31

27.If the UK leaves the EU without a deal, the Government has outlined that the UK will not be bound by the implementation period arrangements set out in the draft Withdrawal Agreement and will seek to end free movement as soon as possible.32 EU citizens and their family members arriving in the UK after a ‘no deal’ Brexit and the ending of free movement will be admitted under UK Immigration Rules and will require permission (leave to enter or to remain): those who wish to stay longer than three months will need to apply to the Home Office for leave to remain within three months of arrival. Subject to identity, criminality and security checks, leave to remain will be granted for 36 months which will include permission to work and study. This will be non-extendable temporary leave, and those who wish to stay longer will need to apply in due course under the future border and immigration system arrangements. Individuals who do not hold valid immigration permission to be in the UK will be here unlawfully and may be liable to enforcement action.33

28.However, there remain several points of ambiguity. A ‘no deal’ scenario would require EU citizens who wish to stay in the UK for longer than three months to apply to the Home Office for leave to remain, and then again when their 36-month grant has expired. Yet it is unclear what would happen, or how the Home Office would know, if they did not do so.

29.It is also unclear how, in the event of a ‘no deal’ Brexit, employers, landlords and other agencies are to differentiate between different groups of EU citizens. Those already resident in the UK who apply to the Settlement Scheme early will be able to evidence their status, and new arrivals who have registered with the Government will similarly be able to demonstrate their entitlement to remain in the UK. However, it will be impossible for employers, landlords and others to tell the difference between long-term residents who are yet to apply to the Settlement Scheme and recent arrivals in the UK who have not registered with the Government. This was acknowledged by the Immigration Minister, Rt Hon Caroline Nokes MP, when giving evidence to us on the Government’s preparations for a ‘no deal’ Brexit.34 The Government has emphasised that employers will not have to carry out additional checks on prospective workers after Brexit, and “will not be expected to differentiate between resident EU citizens and those arriving after exit”.35

30.The ability to tell the difference between long-term residents who are yet to apply and recent arrivals in the UK is an important distinction. The former (if they meet the criteria for settled status) will be entitled to live and work in the UK with largely the same rights as they currently possess, while the latter may not be eligible to remain in the UK long-term, particularly if they have deliberately failed to complete the mandatory registration and to apply for leave to remain. If it is impossible to differentiate between these groups, the prospect is raised of EU citizens being discriminated against in areas such as employment or housing. This is because, under ‘hostile/compliant environment’ measures, employers and landlords can be penalised for employing or renting property to an unlawful resident and may therefore seek to avoid engaging with individuals who for any reason are unable to prove their status.36

31.Given the prospect of such penalties, the situation could also arise whereby an EU citizen who has been legally resident in the UK for decades is disadvantaged (in a job application or when attempting to rent a property for example) relative to an EU citizen who has only recently arrived in the UK but who has completed the mandatory registration with the Government and who can therefore evidence their entitlement to remain in the UK.

32.The spectre of the ‘hostile environment’ and tough immigration enforcement policies is a serious concern for EU citizens in the UK, despite the Home Secretary stating that there would be a “sensible transition period” for EU citizens should an agreement not be reached between the UK and EU.37 Nicole Masri, legal officer for the group Rights of Women, feared that “the full force of the hostile environment will fall down upon people who fail to secure status under the scheme by the deadline”.38

33.There are notable gaps in the Government’s immigration proposals. The determination of the Government to end free movement on the date of departure if the UK leaves the EU without a deal could lead to a situation where long-term EU residents of the UK are, in the period between exit and the closure of the Settlement Scheme, disadvantaged and discriminated against in areas such as employment or housing if they are not able to evidence their entitlement to remain.

34.The Government appears to hope that all EU citizens resident in the UK prior to exit day will apply to the Settlement Scheme right at the beginning, and that all later arrivals will register with the Government when they are required to. Given that this is highly unlikely—we discuss many of the reasons why individuals may struggle or fail to register later in this report—the Government must clarify how it intends to ensure that EU citizens in the UK, many of whom are entitled to live and work in the UK and who may have been residing here for many years, do not suffer any detriment in the event of a ‘no deal’ Brexit. Government ministers have alluded to a “sensible transition period”: both EU citizens and those that wish to engage and interact with them post-Brexit, such as employers and landlords, need detail and certainty on this point.

35.The Government must also clarify if, how and when hostile/compliant environment measures will be applied to EU citizens living in the UK. It is currently unclear, for example, whether the Home Office would contact, inform or pass data on to any agency, Government department or individual (such as an employer or landlord) following an applicant’s unsuccessful application to the Settlement Scheme.


1 Migration Observatory, ‘EU Migration to and from the UK’, 1 December 2018. Home Office internal analysis estimates that the total number of EEA citizens and their family members resident in the UK by the end of the planned implementation on 31 December 2020, and eligible to apply for the EU Settlement Scheme, is likely to be between 3.5 million and 4.1 million; Letter from the Home Secretary to the Chairman of the EU Justice Sub-Committee, 20 March 2019

2 Council Directive 2004/28/EC, the Citizens’ Rights Directive (also referred to as the Free Movement Directive), implemented in domestic UK immigration law in the Immigration (European Economic Area) Regulations 2016.

3 An EEA national is a national of a member state of the EU (other than the UK) or of Liechtenstein, Iceland, Norway or Switzerland, who is not also a British citizen; Immigration (European Economic Area) Regulations 2016, Article 2(2)

4 Eligible family members who are given the same rights of entry and residence to their family member’s host state regardless of their country of citizenship are outlined in Article 2(2) of the Citizens Directive and regulation 7 of the EEA Regulations. These include: a spouse or registered partner; children or grandchildren of either the EEA national or their spouse/partner, who are either under 21 or dependent; parents or grandparents of either the EEA national or their spouse/partner, who are dependent; Council Directive 2004/58/EC; EEA Regulations, ‘The Immigration (European Economic Area) Regulations 2016—Revised Version

5 The continuous five-year period is not affected by temporary absences not exceeding six months per year and other exceptions found in Article 16(3) of the Citizens Directive and regulation 3 of the EEA Regulations; Council Directive 2004/58/EC; EEA Regulations, ‘The Immigration (European Economic Area) Regulations 2016—Revised Version

6 This includes as a worker, self-employed person, self-sufficient person or student, or an eligible dependent. For those not working or who are self-employed, there is also a requirement to hold comprehensive sickness insurance; Council Directive 2004/28/EC, Article 7

7 This means that for 5 years in a row the individual has been in the UK for at least 6 months in any 12-month period, except for one period of up to 12 months for an important reason (for example, childbirth, serious illness, study, vocational training or an overseas work posting) or compulsory military service of any length.

8 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Q755

9 Oral evidence taken on 27 February 2019, The work of the Home Secretary, HC 434, Q767

12 These agreements mean that UK and EEA EFTA citizens living in each other’s countries at the end of the implementation period will be able to continue enjoying broadly the same rights as they do now, including arrangements on residency, healthcare, pensions and education, social security coordination and mutual recognition of professional qualifications. The agreements largely mirror the Withdrawal Agreement agreed with the EU; Department for Exiting the European Union, ‘EEA EFTA Separation Agreement’, 20 December 2018

13 HC Deb, 7 March 2019, HCWS1387

14 If both of the following apply: the relationship began before 31 December 2020 (if the relationship began after 31 December 2020 the family member will be able to come on a family visa), and they are still in the relationship when they apply.

18 HC Deb, 7 March 2019, HCWS1387

23 Independent Chief Inspector of Borders and Immigration, An inspection of the EU Settlement Scheme, May 2019, p27

24 Home Office, ‘Immigration from 30 March 2019 if there is no deal’, 28 January 2019

25 Department for Exiting the European Union, Citizens’ Rights—EU citizens in the UK and UK nationals in the EU, December 2018, p3

26 Oral evidence taken before the House of Lords Select Committee on the European Union Justice Sub-Committee, Brexit: citizens’ rights, 22 January 2019, Q33

27 Independent Chief Inspector of Borders and Immigration, An inspection of the EU Settlement Scheme, May 2019, p31

29 the3million (ESS0001)

32 Through the Immigration and Social Security Co-ordination (EU Withdrawal) Bill, introduced to Parliament in December 2018, which will repeal the Immigration (European Economic Area) Regulations 2016, which currently implement free movement in UK law; Home Office, ‘Immigration from 20 March 2019 if there is no deal’, 28 January 2019

34 Oral evidence taken on 30 October 2018, Government Preparations for Brexit: Border and Security Operations, HC 1674, Q12

36 The 2014 and 2016 Immigration Acts introduced civil and criminal penalties for employers who knew, or had reasonable cause to believe, that they were employing an illegal worker, and for landlords or agents who rent property to a person knowing or having reasonable cause to believe that they were in breach of the Immigration Rules. This formed part of what has become known as the ‘hostile’ or ‘compliant environment’; Free Movement, ‘Briefing: what is the hostile environment, where does it come from, who does it affect?’, 1 May 2018




Published: 30 May 2019