Settled status and citizens’ rights – what has been agreed?

It still makes sense to apply for PR under current rules if you qualify. Those who hold a permanent residence document can have that document converted into the new settled status document free of charge subject to verifying their identity, a criminality and security check and by providing confirmation of continued residence. A document will also prevent confusion when individuals attempt to rent a property, move between jobs or open a bank account.

Apply promptly for the new document. While you will have till June 2021 to apply, you should be aware that if you apply before the end of 2020 and your application is rejected, you can just re-apply as with PR, however, if you apply in 2021 and your application is rejected, you will need to appeal the rejection to the Tribunal.

Freemovement have published an article entitled: Brexit: Settled status and citizens’ rights – what has been agreed? There is nothing groundbreaking, but it does clarify a few points. Below are some salient points from this article.

UK government proposes relaxed approach to settled status applications

For those who are still wondering about “lawful” residence within this context, this side of things has already been covered by the UK as per our latest newsletter. The article also confirms this:

The UK government’s proposes to implement the Draft Agreement by introducing the “settled status” scheme. So far, it appears to be more relaxed, as it will not actually require EU citizens to demonstrate how they meet Article 6 and Article 7. The UK government has said that EU nationals will only need to evidence that they have been and are living in the UK, and undergo criminality checks, in order to qualify under their proposed application process.

Rights to pensions, benefits and healtchare (NHS) preserved

This question comes up very frequently on the EU groups, and EU citizens will be pleased to see this:

…rights currently enshrined in EU law would be preserved, including benefits and healthcare entitlements. EU citizens who have made contributions into the UK benefits and pension system will continue to benefit from those contributions during their time in the UK and will continue to do so if they subsequently relocate to the EU.

Rights lost by living abroad for five years instead of two

EU citizens will be allowed to be outside the UK for five consecutive years without losing these rights, which is longer than the two year period currently allowed.

Concessions made by the British government since February

There have been some changes from February’s draft agreement, including two major concessions made by the UK government:

  1. The UK has accepted that the Court of Justice of the European Union will remain the final arbiter of the interpretation of EU law for the rights of EU citizens.
  2. Free movement is locked in until the end of 2020, the Home Office’s preference to give lesser rights to EU citizens arriving during the transition period — that is, between 29 March 2019 and 31 December 2020 — has been defeated.

Freedom of movement to stay in place till the end of 2020

All EU citizens, and their family members, will be able to move freely into and out of the UK. An EU citizen can continue to use a valid passport or national identity card for travel. Non-EU family members cannot use their national identity card, and must rely on their passport for travel. After five years following 31 December 2020, the UK may decide not to accept national identity cards as a travel document for EU citizens if the national identity card does not include a biometric chip.

Deadline to apply for the new documents

The Draft Agreement confirms that deadline for submitting the application for temporary and settled status shall not be more than six months from 31 December 2020. For family members who join EU citizens in the UK the deadline to submit their applications shall be three months after their arrival or not more than six months after 31 December 2020, whichever is later.

This makes the end of June 2021 the deadline to apply, however, there is a provision to extend this should the Home Office be unable to cope with the volume of applications:

If the Home Office system collapses under the burden of the workload, the deadline to submit applications can be extended by an additional year. The Home Office will need to notify the EU and EU citizens where technical difficulties in the application process occur.

Family members

…family members as defined under Directive 2004/38/EC will be able to arrive after that date so long as the relationship existed before that date and there is evidence of this.

The following are covered:

  • pre-existing spouse
  • civil partner
  • durable partners
  • children or grandchild under 21
  • dependent children or grandchildren older than 21
  • dependent direct relatives in the ascending line
  • children born or adopted after 31 December 2020.

Carers of EU citizens

Also, included in the Draft Agreement are other persons whose presence is required in the UK by EU citizens in order not to deprive that EU citizen of their rights. For example, a non-EU citizen carer of an EU citizen child will be included in the protection of the Draft Agreement so long as they were residing in the UK prior to 31 December 2020.

Applying for PR if you can is still a good idea

…there remains a benefit to obtaining a permanent residence document under EU law now. Being in possession of a document will avoid having to undergo a full assessment later, simultaneously with three million other EU citizens plus their family members.

Also, no matter how simple the new process is or how well publicised, there remains ongoing confusion as to the status of EU citizens or family members now when managing their day-to-day lives, and this may increase as we move beyond 29 March 2019 and into the transition period. Holding a document will prevent confusion when individuals attempt to rent a property, move between jobs or open a bank account.

It pays to apply promptly

While it will still be possible to apply after the end of the transition period, from January till June 2021, it should be noted that, should an application made in 2021 be rejected, the rejection would have to be appealed, while an application made earlier can just be resubmitted as with the current PR system.

If the new application under the UK government’s proposed scheme is refused before 31 December 2020, the application can be remade. After 31 December 2020 the applicant will have to appeal the decision to the UK First-tier Tribunal (Immigration and Asylum Chamber).

Criminality

Currently, there is a very high test under EU law requiring EU citizens to pose a genuine present and sufficiently serious threat to justify removal from the UK. This stringent test will continue to apply for all EU citizens and their family members for criminal records or issues of conduct acquired before 31 December 2020. People who acquire convictions or conduct issues after 31 December 2020 will no longer be protected by this EU law test. Instead, their applications will be subject to the UK’s assessment of criminality, which has a lower threshold to justify removal, leaving this group of EU citizens and family members at a greater risk of removal.

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