One of the key important issues for businesses is the question of post Brexit immigration. One important issue continues to be, the provisions that will be made for European Union (EU) citizens. We are pursuing a proactive and solution- based approach to the question of post-Brexit immigration. Further, our Brexit Contingency Clinic was subsequently incorporated to offer, all parties, a sense of certainty surrounding post-Brexit immigration.
Our model for a post-Brexit is EEA national employees to confirm their status under EU law, that they have a right to reside and work, and are not subject to immigration control. In some cases, this will mean applying for permanent residence if they have lived and worked lawfully in the UK for a continuous period of 5 years, acquiring British citizenship through residence or, applying for a document called an EEA Registration Certificate.
The EU Settlement Scheme
The EU Settlement Scheme (the Scheme) has been introduced as a new immigration category under the Immigration Rules that allows EEA citizens and their family members to protect their entitlements, including the right to reside and work in the UK after Brexit. These Regulations
continue to apply in full throughout the transition period in force after the UK leaves the EU.
EEA citizens and their family members who benefited from EU free movement rights, pre Brexit will continue to do so pursuant to the withdrawal agreement reached between the EU and the UK, and
the equivalent agreements reached with individual EU countries.
As such, EEA citizens and their non-EEA citizen family members who had a right to enter and reside under the EU law will continue to be able to do so until 11 pm on 31 December 2020.
It is the government’s stated intention to immediately end free movement at the end of the transition period. All EEA citizens arriving in the UK from that time (who are not otherwise in scope of the EU Settlement Scheme) will be subject to the new ‘single’ post-Brexit immigration system.
Broadly, those who fall within the scope of the Scheme and have resided in the UK for a continuous period of five years (subject to exceptions) which commenced prior to the end of the transition period will be granted indefinite leave to remain (also known as settled status). Those who have resided in the UK for less than five years by that date will be granted limited leave to remain (also known as pre-settled status) allowing them to accrue the relevant qualifying period to then apply for settled status in the UK.
Family members (and certain ex-family members) of eligible EEA citizens also fall within the scope of the Scheme in various circumstances, which can differ depending on whether they arrive in the UK prior to the end of the transition period. In this context, the term ‘family members’ includes both non-EEA citizens and EEA citizens who are not eligible in their own right under the Scheme (eg family members who will arrive in the UK for the first time after the end of the transitional period). The term ‘third-country national’ will no longer be correct to describe non-EEA citizens from 1 February 2020, after the UK leaves the EU.
Post Brexit Immigration; Are You Ready?
To be granted immigration permission under the EU Settlement Scheme, an applicant must:
• meet the residence requirement
• not fall foul of the suitability requirements (including in relation to criminal
conduct and deception), and
• make a ‘valid’ application
Family members who are not eligible, in their own right, and those in other categories, will need to evidence that they meet the additional relevant requirements.
The majority of those applying for immigration permission under Appendix EU will need to use the prescribed online application form. For very many applicants, the application process should be relatively straightforward and quick between 1-3 days, although processing times have increased significantly to 1 month+, with applications made via a phone app (for the identity and nationality aspect) and linked online process.
In addition to completing the application form, applicants are required to provide their biometric data (facial photograph and, for non-EEA citizens only, fingerprints), unless they have previously provided this. EEA citizens holding biometric passports or ID cards, and non-EEA citizens who hold
valid biometric residence cards issued under the EEA Regs 2016, SI 2016/1052 can use the EU Exit: ID Document Check app (the app) to complete this process. Non-EEA citizens who do not have a
valid biometric residence card will be required to attend an appointment at a UK Visa and Citizenship Application Service centre.
Those eligible to use the app can make their applications from inside or outside the UK (although there is a practical obstacle in this regard, which is that the app can currently only be downloaded in EEA states).
Eligible family members who have not yet entered the UK may apply for a family permit to facilitate their entry to the UK. Throughout the transition period they will have the option to apply for a family permit under the EEA Regs 2016, SI 2016/1052, or for a family permit issued under the Scheme, as set out in the Immigration Rules, Appendix EU (Family Permit). Note that certain categories of family member can only apply under the EEA Regs 2016, SI 2016/1052 until the end of the transition period (such as durable partners). One important distinction between family permits issued under the EEA Regs 2016, SI 2016/1052 and those issued under the Scheme is that, generally, the EEA citizen must already have obtained pre-settled or settled status in order for their family member to be issued a family permit under the Scheme.
In many cases, Appendix EU applicants will not be required to provide any evidence of residence in the UK, as the Home Office will be satisfied on this aspect following the automated checks of HMRC and Department for Work and Pensions records that are run for all applicants who include their National Insurance number.
Decision, updating status and maintaining leave
Upon submission of an Appendix EU application, the applicant will be sent an email confirming that they have made an application for immigration permission under Appendix EU (with a certificate of
application attached). This will be sent to the email address used as part of the app process and/or application form.
Once a decision has been made on the application, the applicant will receive a decision letter electronically by email.
EEA citizens will not receive a physical document that proves their status, instead their status is held in digital format. Non-EEA citizens will be provided with a biometric residence card issued under the
Scheme, in addition to having their status evidenced digitally (unless their existing biometric residence card still has validity, in which case that document will remain valid for these purposes until its expiry date).
Successful applicants (irrespective of nationality) are given a reference number and access to an online portal enabling them to view their status and prove their rights, e.g. to employers or landlords (as required). The Home Office requests that persons with pre-settled or settled status
update them when various contact and other details change, and also asks them to send in their new identity document if this changes.
Indefinite leave to remain granted under the Scheme will lapse if the holder is absent for a continuous period of five years (or four years, if they are a Swiss national). Limited leave will lapse if the holder is absent for a continuous period of more than two years, but they will lose the possibility to apply for indefinite leave to remain if they leave the UK for more than six months in any 12- month period. Those granted limited leave will also need to remain eligible under the Scheme in all
other aspects (as is relevant).
For more information on maintaining status following grant of leave and the implications of settled status on naturalisation/other possible citizenship consequences, please do not hesitate to contact us.
In the event of a refusal of an application under the Immigration Rules, Appendix EU, an applicant’s main options are submitting a fresh application, administrative review, appeal (for applications submitted on or after 11pm on 31 January 2020), and (in some limited cases) judicial review Steps can, should and must be taken now to safeguard your organisation’s existing EU workforce.
Our Trusted Immigration Practice – Business, Corporate Immigration IPM Global
Telephone: +44 (0) 1733 364040
Email us: firstname.lastname@example.org
Address: 43 Tyndall Court, Commerce Road, Lynch Wood, Peterborough,
Cambridgeshire, PE2 6LR, UK