Are EU nationals at risk of losing their immigration status in the UK following Brexit?
By Dr Lusine Navasardyan
Dr Lusine Navasardyan is Director and Head of Corporate and Business Immigration at RVS Solicitors. Dr Lusine studied at Yerevan State University and the Bucharest University of Economic Studies. She is also a published author and a member of the Bucharest Bar. As a Director of RVS Solicitors, she is instrumental to the operation of the law firm, and as Head of Corporate and Business Immigration, she helps our clients to forge new futures in the UK.
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The current Immigration Rules stipulate that European nationals have the right to reside in the UK they are exercising treaty rights. An EU national is exercising treaty rights if they are a worker, self-employed person, student or self-sufficient person (i.e. a qualified person). An EU national is required to remain a qualified person for a continuous period of five years to be eligible for Permanent Residence in the UK.
Due to the ongoing Brexit negotiations, it has become evident that European nationals will need to partake in a new process to be able to retain their legal status in the UK; failing to adhere to the new provisions could leave EU nationals without legal status.
What is the current Post-Brexit agreement?
The UK is due to formally depart from the EU on Friday 29th March 2019 however, there will be a transition period from this date up to and including the 31st December 2020.
According to the Home Office, EU nationals who enter the UK during this transition period will be able to reside in the UK under the same requirements that current EU nationals are relying on for residency. However, EU nationals who wish to remain in the UK for a period exceeding three months will need to register.
The agreement further states that EU nationals who reach five years lawful and continuous residency in the UK by 31st December 2020, will have the opportunity to remain in the UK permanently by obtaining settled status.
It is worth noting that those arriving now to the UK before 31st December 2020 will not fulfil the five years lawful and continuous residency requirement and as such they will need to submit an application to remain in the UK until they are able to fulfil the five year residency requirement.
Fortunately, the same will apply to family members of EU nationals who enter the UK or reside with the EU national by 31 December 2020. Following Brexit, dependents of EU nationals will still have the opportunity to join an EU national if their relationship with the EU national was in existence on or before 31st December 2020.
CONTACT US if you are unsure about your rights following Brexit and our team of specialist immigration lawyers will be glad to assist you.
How will the Home Office assess an application for settled status?
The Home Office have stated that this process should be much clearer and that it will be far easier for EU nationals to obtain settled status compared to the current Free Movement Directive. As such, the main requirement continues to be that an EU national will require a period of five years continuous residency to be eligible for settled status.
It is vital to note that those who are not resident in the UK by the end of the transition period, that being the 31st December 2020, will not be able to apply for settled status. Further to this, the Home Office have stated that the only other reason as to why an application for settled status could be refused, would be due to serious criminal convictions and any other security reasons.
How can I apply for settled status?
The Home Office are currently in the process of launching an online application system due to go live later this year. The application system will allow EU nationals to apply for a status document as proof of their right to reside and work in the UK legally.
A positive result of the current Brexit agreement is that the evidentiary requirements have been lowered and as such EU nationals will no longer be required to provide their employment history nor will they be required to explain and declare trips taken abroad.
The Home Office have confirmed that the following documents are required to apply for settled status:
- the EU national’s ID
- a recent passport-sized photograph of the EU national
- the requirement to declare criminal convictions
From the above information, it appears that the Home Office is attempting to provide a user-friendly system and in theory, it appears to be flawless and extremely organised. However, it is difficult to state whether it will be the same in practice as the Home Office are well known for their complex requirements and their inability to competently consider immigration applications.
Contact us if you require further guidance on the above requirements.
Am I still at risk of losing my legal status after Brexit?
A recent report published by The Migration Observatory at the University of Oxford has stated that for certain EU nationals it will be difficult to obtain settled status.
The report states that this will be due to the three requirements that need to be met for an EU national to acquire legal status. The first of which is the requirement for awareness of the scheme, the ability to navigate the system and submit the application, and finally the ability to evidence their continuous residence in the UK.
There are EU nationals currently residing in the UK who fall under several high-risk categories who may not be able to fulfil the above and as such will fail to benefit from the opportunity to apply for settled status. There are many vulnerable EU nationals in the UK who may not have access to the help and support required to submit a successful application.
One of the categories at risk are children born in the UK to EU nationals and where the parents fail to make an application in time for themselves and in some circumstances, may assume that their child has automatically obtained British citizenship due to their birth in the UK. The birth of a child in the UK does not always entitle the child to obtain British citizenship, though this will be the case in some circumstances but sadly not for all.
Current statistics suggest that there are over 200,000 children born in the UK to EU and non-EU nationals who have not acquired the automatic right to British citizenship. Due to this misconstrued right, many EU parents will assume that their UK born child is not required to secure their status in the UK. The consequence of this is that their child will lose the right to apply for settled status if it is not dealt with during the transition period thus rendering the child without legal status.
Further to this, there are EU nationals who have been residing and working in the UK for several decades who have assumed that they are not required to apply due to the length of their residence. There are also those who have applied for Permanent Residence under the current rules but were unsuccessful. Additionally, there are also non-EU nationals who are residing in the UK having acquired retained rights of residence; this group may not understand their rights under the new scheme.
Although the Home Office have continued to reassure EU nationals of their rights in the UK following Brexit, it is unclear as to how the new system and the settled status scheme will be implemented. Due to the number of EU nationals at risk of losing their right to remain in the UK, it is anticipated that the Home Office may implement a grace period, thereby providing vulnerable EU nationals with sufficient time to submit a successful application in order to secure their legal status. The Brexit negotiations leading up to our formal departure from the EU will continue to dictate how stable the future of EU nationals will be in the UK.
CONTACT US if you are an EU national and are unsure as to whether your child should apply for settled status or whether you currently hold retained rights of residence.
Our team of experts are extremely knowledgeable and experienced in this area and as such will be able to provide you with a solution carefully catered to your circumstances.
