Please note that the following provisions will remain the same despite the UK leaving the European Union after the Brexit date of 31/01/2020
UK nationals will still be treated the same as EU nationals during the transition period (which is until 31 December 2020). Flights, boats and trains will operate as usual. When it comes to passport control, during the transition period (which is until 31 December 2020), UK nationals will still be allowed to queue in the areas reserved for EU arrivals only.
Freedom of movement will continue to apply during the transition period (which is until 31 December 2020), so UK nationals will still be able to live and work in the EU as they currently do. The same applies for EU nationals wanting to live and work in the UK.
UK nationals living in the EU will continue to receive their state pension and will also receive the annual increase.
Settled and pre-settled status for EU citizens and their families
EU citizens and members of their families (including un-married partners), who were permanently settled in the UK for five years by the 31st of December 2020, are eligible for ‘settled status’ (indefinite leave to remain in the UK). Those who lived in the UK for less than 5 years by the 31st of December 2020, are able to obtain a ‘pre-settled status’ (five years’ limited leave to remain in the UK). Once they reach 5 years threshold they will be able to apply for “settled status”. To be eligible for settled status, applicants usually need to have lived in the UK for at least 6 months in any 12 month period for 5 years in a row. They will need to provide proof of this when they apply.
After 31st of December 2020, close family members of an EU citizen (spouse, civil partner, long-term partner, dependent child or grandchild, dependent parent or dependent grandparent) residing abroad can join the main applicant in the UK. They will need to prove that their relationship existed on the 31st of December 2020 and continues to exist while the person moves to the UK.
The testing of the new EU Settlement Scheme began on the 28th of August 2018. The second pilot phase of EU Settlement Scheme was launched on 1 November 2018 and finished on 21 December 2018. The third pilot version is now opened to wider public. All EU citizens with valid passports and their non-EU family members with 5 years BRPs can apply for their new immigration status from 21 January 2019. EU residents, who only have identity cards in place, as well as citizens of Norway, Switzerland, Iceland and Liechtenstein are able to submit their applications only in March 2019.
EU Settlement Scheme appeal rights introduced
The Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 came into force on the Brexit day — 31 January 2020.
They create a right of appeal to the immigration tribunal for people refused pre-settled or settled status under the EU Settlement Scheme.
Note that this only applies to applications “on or after exit day”, which is 31 January 2020, but does allow people to appeal a grant of pre-settled status up to full settled status.
There are also appeal rights for various scenarios where settled status is being cancelled or revoked.
Appeals go to the First-tier Tribunal, unless certified as a national security issue for the Special Immigration Appeals Commission.
All EEA nationals have an initial right of residence in the UK of three months. All EEA nationals have a right to continue to reside in the UK as long as they are a ‘qualified person’, i.e. they are an EEA national exercising Treaty rights in the UK. Treaty rights refer to any of the following:-
Those in study and the economically self-sufficient have to have comprehensive sickness insurance in place (in order not to become a financial burden on the host state) before their Treaty rights are effective.
The following, therefore, are qualified persons and have a right to reside and work in the UK for as long as they remain a qualified person: job seekers; workers; self-employed persons; students with comprehensive sickness insurance; the economically self-sufficient with comprehensive sickness insurance.
An EEA national may exercise Treaty rights in the UK as a job seeker if they are seeking work. They must show they are actively seeking work and have a realistic chance of finding work. The normal period a person can be considered as exercising treaty rights and having what is known as ‘retaining worker status’ as a jobseeker is for 6 months unless exceptional circumstances apply. The Home Office have provided an amendment to the Immigration (European Economic Area) Regulations 2006 as amended (EEA Regulations 2006 as amended) to attempt to clarify when a person can be considered as ‘retaining worker status’ in the UK.
From the 1 July 2014, the EEA Regulations 2006 as amended include the following:
A jobseeker will be considered as exercising treaty rights or having ‘retained worker status’ in the following ways:
This does not change the fact that jobseekers are still considered as ‘qualified persons’ for the purpose of their rights to reside under the EEA Regulations 2006 as amended.
All EEA nationals have automatic rights to reside and work in the UK except Croatian nationals. Croatia joined the EU in 2013 and have the same right to enter and live in the UK as other EEA nationals but are still subject to work restrictions and still need to apply for the relevant documentation. As of 1 January 2014 nationals from Bulgaria and Romania no longer require permission to take up employment in the UK. Their rights are now the same as other EEA nationals in the UK.
It is not necessary to have full-time employment in order to be a qualified person and qualify for a Registration Certificate. Part-time employment renders an EEA national a qualified person, as long as it is ‘genuine and effective’ employment and workers can even supplement their income with public funds.
If a person is unable to continue employment due to involuntary redundancy, they do not lose the right to reside if they had been working for at least a year before redundancy and register as unemployed. They can be unemployed for more than six months if they can show they are actively seeking work and have a genuine chance of being engaged. A person does not cease to be a worker owing to a temporary inability to work as a result of accident or illness.
Anyone who claims to be a qualified person in this category must be self-employed and registered for income tax and national insurance purposes as a self-employed person with HM Revenue & Customs (HMRC). A self-employed person who is temporarily unable to continue self-employment owing to accident or illness will not lose their status as a qualified person.
To be a qualified person as a student the student must:
The Economically Self-Sufficient
A self-sufficient person is someone who has enough money to pay for their living expenses without claiming benefits in the UK and who has comprehensive sickness insurance in the UK.
To be accepted as a self-sufficient person they must be able to show more than the maximum level of resources which a UK national and their family members can have in order to qualify for social assistance under the UK benefits system.
Derivative rights of residence
Since 16th July, 2012, there are new rights of residence for: those caring for self-sufficient EEA children; the children of former EEA national workers where the child is in education; carers of the children of former EEA national workers where the child is in education; the dependent children of such carers. The European Court’s judgment of Zambrano has now been implemented in the EEA Regulations so a sole carer of a British national has a right of residence if they can show that the British child would be required to leave the European Union if the carer had to leave the UK. These new rights of residence for such people are called ‘derivative rights’ of residence. These derivative rights cannot lead to a right of permanent residence.
Those who satisfy the new conditions may qualify for a ‘derivative Residence Card’ if applying within the UK, a Family Permit if applying to enter the UK from overseas or they may assert a right of residence on entry to the UK.
A registration certificate proves the holder’s entitlement to reside in the UK, although there is no requirement for EEA nationals to obtain a Registration Certificate as it only confirms a right to reside and work in the UK. It is therefore a document of administrative convenience which evidences the right to reside rather than a legal document which gives the right of residence.
Nationals of all the EEA states (except Croatians) can make an application for a Registration Certificate if they are a ‘qualified person’. They will need to provide:-
A Registration Certificate is normally issued for five years unless a shorter period of employment is intended and stated in the application.
EEA nationals and their family members who have resided in the UK ‘in accordance with [the EEA] Regulations’ for a continuous period of five years acquire a permanent right of residence. In accordance with the Regulations simply means that the qualified person has effectively exercised Treaty rights throughout and the family member has remained the family member of a qualified person throughout.
The permanent right of residence is not dependent on the exercise of any Treaty rights.
From 12 November 2015, an EEA nationals wishing to apply for British citizenship must provide a valid permanent residence card or document certifying permanent residence or a residence permit or residence document together with their application.
These cards must be issued under the Immigration (European Economic Area) Regulations 2000 which is endorsed under the immigration rules to show permission to remain in the United Kingdom.
EEA national can apply for permanent residence card after 5 years of exercising treaty rights in the UK. He or she will be able to apply for naturalisation in 1 year after the application for permanent residence card has been submitted, even if it has been considering for several months. Those EEA national who are in the UK for 6 years of which 12 months they have a permanent residence status will be able to apply for naturalisation right after obtaining permanent residence card.
Family members would be issued a Registration Certificate (provided they are also EEA nationals) in line with the main applicant. If the family member is a non-EEA national they should apply for a Family Permit (if applying to enter the UK and issued for a period of six months) or a Residence Card if already in the UK (issued for a period of five years).
A family member includes a spouse, child under the age of 21 and direct relatives in the ascending line where they are financially dependent on the qualified person. Other relatives can come under the definition of an ‘extended family member’ (treated as family members) but they are required to prove that they were financially dependent on the EEA national or were a member of the qualified person’s household before arrival in the UK.
Family members’ retention of rights
Family members who are not exercising Treaty rights (which includes non-EEA national family members) are dependent on the qualified person for their right of residence. If the qualified person ceases to be a qualified person the family members will normally lose their right of residence also but there are provisions to allow family members to retain a right of residence in certain circumstances.
If the family member was living in the UK for at least a year when the qualified person (or a person with a permanent right of residence) died they will retain a right of residence if they can show they would be exercising Treaty rights if they were an EEA national (i.e. they are a working or a student, etc.).
If the family member was the spouse of a qualified person (or a person with a permanent right of residence) they can retain a right of residence in the event of divorce if: the qualified person (or person with a permanent right of residence) was a qualified person (or a person with a permanent right of residence) on the date of the Decree Absolute; before the start of divorce proceedings, they had been married for three years and both spouses had lived in the UK for a at least a year during the marriage; the family member can show they would be exercising Treaty rights if they were an EEA national.
There are different provisions for children where their parent ceases to be a qualified person and these are now dealt with the ‘derivate rights of residence’ described above. The parent responsible for the care of such a child would also retain a right of residence.
EEA Regulations & British Nationality
Many EEA nationals who exercise their treaty rights (as a worker or jobseeker, or as a self-sufficient person or student with comprehensive sickness insurance for themselves and all dependents) in the UK go on to obtain Permanent Residence and later British nationality. However, there are drastic impacts to the EEA nationals dependent relatives if they do decide to obtain British nationality.
At present, as long as an EEA national is exercising their treaty rights in the UK they have the right for dependent relatives to reside with them in the UK. This right remains should they later obtain Permanent Residence under the EEA Regulations. However, the moment an EEA national obtains British nationality, his/her dependents can no longer reside under the EEA Regulations and they must obtain leave under the relevant Immigration Rules.
As many people are aware the Immigration Rules are far stricter than the EEA Regulations. For instance under the Immigration Rules for a dependent partner you must have a salary of at least £18,600 for at least six months, or you must have held cash savings of at least £62,500 for at least six months. For the EEA Regulations there is no such financial requirement, you must simply show that you are exercising your treaty rights in the UK. There are also severe restrictions if you are a British national and you wish for an adult dependent relative to join you in the UK, such as a parent or grandparent.
Given the EU Referendum in the UK many EEA nationals are looking to obtain Permanent Residence in the UK or British nationality, however it is important to be aware of the consequences of EEA nationals obtaining British nationality to their dependent family members.
EEA nationals residing in the UK would be expected to arrange for their maintenance and accommodation without recourse to public funds but any public funds taken do not have any effect on their right to live and work in the UK, as long as they remain a qualified person.
Law Firm has extensive experience in assisting nationals with EEA applications who wish to bring their family members to the UK and would be happy to advise you on your eligibility in one of our consultations. This can be provided via Skype or face to face at our London or Moscow office.