How can EU nationals protect their rights in light of Brexit?

Answer

As Brexit date is uncertain (ie, 31 October 2019, 31 January 2020 or whenever it may be) and in light of the recent political events, EU nationals and their non-EU family members need to think about how they can protect their status in the UK now.

The EU Settlement Scheme (the Scheme)

The Scheme provides two new statuses for EU nationals and their non-EU family members: the pre-settled status and the settled status.

1. Pre-settled status 

If the applicant has been living in the UK continuously for less than five years, they will be eligible for the pre-settled status. The successful applicant will be granted limited Leave to Remain for a further five years from the date of grant. Once they have reached five years of continuous residence in the UK in total, they will be eligible to apply for settled status.

Please note that the five-year period granted under the pre-settled status is not extendable.

2. Settled status

If the applicant has been living in the UK continuously for five years or more, they will be eligible for settled status. For these purposes “continuously” means that the applicant must have been living in the UK throughout the period with no absences of more than six months in any 12-month period.

The successful applicant will be granted Indefinite Leave to Remain, otherwise known as permanent residence. The applicant will be free of immigration restrictions and will be able to apply for British citizenship at a later date.

On 15 August 2019, the Home Office announced that over a million people have been granted either the pre-settled status or settled status under the Scheme.

The application process under the Scheme can be made online and it is free. The process consists of two parts:

• identity checks (using the “EU Exit: ID Document Check” app or by sending documents in the post); and
• continuous residence checks (automated checks by providing the applicant’s National Insurance number or by scanning supporting documents online).

Deal or no deal

The GOV.UK website states that 30 June 2021 will be the deadline for applying under the Scheme. However, this is dependent on an agreement being reached between the UK government and the EU.

In the event of a no-deal Brexit, applicants who wish to live in the UK will need to:

• be living in the UK by 31 October 2019 (or 31 January 2020 or whenever Brexit date may be); and
• apply under the Scheme before 31 December 2020.

If the UK leaves the EU with a deal, the current proposal is that applicants who wish to live in the UK will need to:

• be living in the UK before 31 December 2020; and
• apply under the Scheme by 30 June 2021.

Registration Certificate and Document Certifying Permanent Residence

EU nationals who currently hold a Registration Certificate or Document Certifying Permanent Residence (DCPR) will need to either:

• make an application under the Scheme as set out above; or
• apply for naturalisation to become a British citizen (if the relevant requirements are met).

Naturalisation to become a British citizen

If the applicant has been living in the UK continuously for more than five years, there are two ways in which they can apply to naturalise to become a British citizen.

1. Document Certifying Permanent Residence (DCPR)

If the applicant currently holds a DCPR, they will be eligible to apply for naturalisation a year after the date of grant of the DCPR.

If the applicant does not currently hold a DCPR but has been living in the UK for at least six years, they can still apply for DCPR before the UK leaves the EU (ie, Brexit date).

DCPR can date back to when the applicant qualified for permanent residence (i.e, after five years of continuous residence). If the applicant can show that he has held this permanent residence status for a year under the DCPR, he can then make a naturalisation application immediately (providing that he meets all the relevant requirements).

2. Settled status 

If the applicant is granted settled status under the Scheme, they will have to wait a year before he is eligible to apply for naturalisation (unless he is married to a British citizen). This is the case regardless of how long the applicant has been living in the UK.

Issues and considerations

The main issues to consider for EU nationals and their non-EU family members who wish to move to or remain in the UK are as follows:

• decide whether to move to the UK before Brexit date if not currently present in the UK;
• apply now;
• apply at a later date;
• do nothing; or
• consider other UK immigration routes.

1. Move to the UK 

EU nationals and their non-EU family members who are not currently in the UK but wish to make the UK their home, should consider moving to the UK before Brexit date and make an application (see below).

2. Apply now (our recommendation)

Depending on the applicant’s period of continuous residence, they should consider making an application before Brexit date under the Scheme or apply for naturalisation to become a British citizen.

3. Apply at a later date (and seek legal advice)

Some applicants may wish to apply under the Scheme at a later date for various reasons. For example, if they know they will have significant absences from the UK in the next few months. Although it may be possible for some applicants to make an application after Brexit date, their ability to do so will depend on their circumstances and whether the UK will be leaving the EU with or without a deal.

Please note that, although applicants who have arrived in the UK before Brexit date have until 31 December 2020 to apply if the UK leaves the EU without a deal (according to the gov.uk page), until the applicant makes an application under the Scheme or to naturalise as a British citizen, their rights and status are not guaranteed or protected in light of the political uncertainties. Therefore, this decision should not be taken without seeking legal advice.

Currently, there is no practical distinction between someone who has arrived in the UK before Brexit date (unless they have a Registration Certificate, DCPR or have applied under the Scheme) and someone who arrives after Brexit date. In theory, they have different rights but it remains uncertain how a border officer will be able to distinguish the two different groups of people unless the EU citizens and family members who have arrived in the UK before Brexit date hold some physical proof. This is another benefit of making an application before Brexit date.

4. Do nothing 

We understand that some EU nationals and their non-EU family members are taking the “wait and see” approach due to the uncertainties of Brexit and the known issues with the Scheme. However, there is a real risk that their rights and status will not be protected if they do not make an application under the Scheme or to naturalise as a British citizen in time.

5. Consider other UK immigration routes

If the applicant is unlikely to meet the five-year continuous residence requirement after obtaining pre-settled status then they may not be eligible for settled status when the time comes.

Such applicants should consider what other immigration routes may be available to them to remain in the UK when their pre-settled status expires. We are expecting significant changes to the current UK immigration system in 2021 so applicants who find themselves in this category should seek further advice.

Suzanna Harvey is a partner at Burges Salmon.

This article first appeared on Lexology.