The EU Settlement Scheme (“Settlement Scheme”) is a process EEA nationals and their family members must use to regularise their stay electronically either before 30 June 2021 or, in the event of a ‘No deal’ Brexit, potentially by 31 December 2020. The EU Settlement Scheme implements the EU-UK Withdrawal Agreement negotiated by Theresa May.
EU nationals coming to the UK after the relevant date, will be unable to regularise their stay through the EU Settlement and Pre-Settlement Schemes, but rather will need to comply with the UK immigration rules then in place (a full review of the immigration rules is expected by December 2020). EEA nationals and their family members should note that the EU Settlement and Pre-Settlement Schemes are considerably more generous to applicants than existing UK immigration laws.
Whilst the UK immigration rules are complicated and require applicants to adhere to strict criteria, the EU Settlement Scheme is a relative breath of fresh air. Moreover, applications under the immigration rules are expensive and often protracted, whereas applications under the EU Settlement Scheme are free and usually determined within 24 hours. Any EU national or family member that is eligible should be advised to take advantage of the scheme prior to the cut off date.
The Settlement Scheme does not replace the EEA Directive on Free Movement and the Immigration (European Economic Area) Regulations 2016 which remain valid and binding law in the UK whilst we are part of the EU. If the UK does Brexit, those who have obtained EEA Residence cards, EEA Registration Certificates or EEA permanent residence (PR) will need to register to demonstrate their ongoing right of residence and/or right to work, (an exception being where an individual has gone on to obtain British citizenship).
Those applying through the EU Settlement Scheme will be granted ‘settled status’ (ILR) if they have been resident in the UK for a continuous qualifying period of five years. Those that have been in the UK for less than 5 years or who otherwise cannot satisfactorily demonstrate their presence here will be granted pre-settled status for five years. Once they have been resident in the UK for the 5-year qualifying period, those with pre-settled status can then apply for ILR.
Those granted settled status will be able to enter the UK, live and work here and have access to the healthcare system. Those with pre settled status will have similar rights whilst resident during the period of their approved residence.
Applicants can be denied settled or pre-settled status if they do not satisfy ‘suitability’ tests, for example, if they have criminal convictions.
Applicants both within and outside the UK must apply:
Where applicants provide a National Insurance number an automated check will be carried out with HMRC and the Department of Works to establish whether the residence requirement have been met.
If the checks are conclusive ILR or PSS will be granted.
Where the checks are inconclusive, further evidence to establish the claim will be requested.
If the evidence is not provided the application will be rejected.
Those denied settled or pre-settled status will have the right to request an administrative review of the decision. However, those denied on suitability grounds will only be able to seek judicial review of the Home Office decision.