Visas and Immigration for EEA Nationals
EU citizens given 28-day deadline to apply to stay in UK
EU citizens are being denied entry to the UK – what are the visa rules for visitors?
How do Covid-related absences from the UK affect EU pre-settled status?
It just got even more difficult for EU nationals to get British citizenship
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.
If EU citizens temporarily come to the UK for the purposes of employment, a special new visa category called "Frontier Worker Permit" has been recently introduced for them in this regard.
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28-day extension to apply under the EU Settlement Scheme
The basic rule is that an EU citizen found by someone in authority to have missed the Settlement Scheme deadline will be given 28 days to apply late. We see this first of all in guidance on the fundamental question of kicking people out of the country:
From 1 July 2021, where a person without status under the EU Settlement Scheme is encountered by Immigration Enforcement (or referred to them, e.g. by a Local Authority), the officer will… provide the person with a written notice giving them an opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice.
During the grace period, “no immigration enforcement action for being in the UK without leave will normally be taken”. The guidance is silent on what happens if the person doesn’t apply within 28 days (or however long the notice gives them). By default, normal immigration enforcement — detention centres and removal from the country — kicks in.
What happens to EU citizens who miss the settled status deadline?
The first thing to say is that they can still apply. The Withdrawal Agreement again:
where the deadline for submitting the application… is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline…
Let’s take the hypothetical example of Christian, an Austrian citizen who moves to the UK in 2015. He doesn’t read or watch any news and has no idea that Brexit affects him, so doesn’t apply to the Settlement Scheme by the deadline.
Scenario 1: no late application
It is now 1 August 2021. Christian still hasn’t applied to the Settlement Scheme. He now has no lawful status in the UK. You would assume that he can be kicked out of the country. Section 10 of the Immigration and Asylum Act 1999 says:
A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave [permission] to enter or remain in the United Kingdom but does not have it.
In fact there is an argument that Christian is not actually breaking immigration laws. That is because UK immigration legislation is set up to penalise crossing the border without permission or remaining in the UK after that permission expires. Christian never needed permission because of EU free movement laws, so he does nothing wrong by simply staying put, in much in the same way that a baby born in the UK without British citizenship (which is quite common) is not in the country illegally.
While that might make an interesting court case some day, the UK government’s interpretation of the law is simpler: if you don’t have permission to be in the UK, you’re here illegally.
Scenario 2: late application pending
Let’s say Christian eventually realises that Brexit is a thing. On 1 September 2021, he applies to the EU Settlement Scheme, arguing that he had reasonable grounds for missing the deadline.
From this point on, he may actually have residence rights again. That is because of how Article 18(3) of the Withdrawal Agreement is worded: the protections for someone with a pending application seem to apply to any pending application, even a late one that relies on “reasonable grounds”. So arguably he should now be in the same position as those who applied before the deadline and have a pending application.
Absences and the EU Settlement Scheme
The starting point is that EU citizens and their family members will qualify for settled status after completing “a continuous qualifying period of five years of residence” in the UK. Those living in the UK for less than five years qualify for pre-settled status instead, and can upgrade to settled status once they reach five years.
A “continuous qualifying period” is defined in Appendix EU of the Immigration Rules (the domestic legal source of the Settlement Scheme) as being a period of residence that began before 11pm on 31 December 2020 and which has not been broken by one of the following:
- Absence(s) from the UK exceeding a total of six months in any 12-month period, subject to some exceptions discussed below
- A prison sentence
- A deportation, exclusion or removal decision or order (in very general terms)
Exceptions to the six-month rule
There is some allowance for periods longer than six months in very narrowly defined circumstances. These include periods of absence for any length of time on compulsory military service, a Crown service posting (or as a partner or child accompanying such a person) or time “spent working in the UK marine area”.
In addition, applicants are permitted “a single period of absence” that does not exceed 12 months and which is “for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting”. These are examples only. This means other situations may also qualify as an “important reason”: for example, caring for a terminally ill parent.
The Home Office has issued guidance on whether COVID-19 is an “important reason”. Unfortunately, according to this guidance the pandemic will only justify an absence of up to 12 months if the person is forced to remain outside the UK due to travel restrictions, quarantine or COVID-19 related health complications; or if they are enrolled at British university and are being allowed to study remotely. If someone has made a conscious decision to remain abroad – e.g. for economic reasons, because they want to be closer to their family members or because they consider the risk to their health to be greater in the UK than in another country – the guidance implies that this won’t count.
Applicants who broke the continuity of their residence but returned before 31 December 2020
Someone who left the UK for more than six months and broke their continuous residence but was back in the UK before 31 December 2020 should be able to apply for an extension of their pre-settled status. This will allow them to clock up five years’ continuous residence and so qualify for settled status.
Previously, it wasn’t entirely clear whether extending pre-settled status in this way would be allowed, but the Home Office has since confirmed to the authors that renewing pre-settled status is in fact possible for those back in the UK in time. Such applications can be made after the normal pre-settled status deadline of 30 June 2021; they just need to be made before your existing pre-settled status expires.
Applicants who break the continuity of their residence and return after 31 December 2020
The option to extend/renew pre-settled status is not available to people who return to the UK after the end of the transition period.
If someone with pre-settled status exceeds the permitted absences and returns to the UK after 31 December 2020, they will be unable to restart the settled status clock at all. Their permission to be in the UK will end on the date their pre-settled status expires. They will need to get permission to remain under the normal UK visa system, or leave the country.
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.
EEA Regulations & British Nationality
In accordance with the operation of the EU Settlement Scheme following the recent Brexit procedure, it is stated that EU, EEA or Swiss nationals and their family members granted indefinite leave to enter or remain (settled status) under the EU Settlement Scheme must show and provide documentary evidence for the past five years of EU, EEA or Swiss nationals exercising their treaty rights in the UK prior to making the naturalization application.
Such requirements can be met by providing documents showing that they have been complying with requirements concerning them exercising treaty rights, such as having comprehensive medical sickness insurance for those who have been self-sufficient, or on the basis of having been residing in the UK as employed, self-employed or in the capacity of student.
Failure to provide such documentary evidence for the past five years may lead to the naturalization application being refused by the Home Office.
We offer the following professional services provided by our highly qualified immigration specialists:
- Consultation and explaining the procedure for obtaining Pre-Settled and Settled status under the EU Settlement Scheme
- Submission of applications for citizens and family members of EU and EEA countries as well as of Switzerland
- Preparation and submission of appeals in case of getting refusal
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