cj-law

Settled Status for EU Citizens and their family members.

Settled Status for EU Citizens and their family members.

Settled status is also known as Indefinite Leave to Remain in the UK (ILR). It is a form of immigration status which the Home Office issue to non-EU nationals where they qualify for it under the Immigration Rules. EU Citizens and their family members are currently entitled to Permanent Residence (as opposed to Settled Status). When the UK leaves the EU, the Home Office intend to issue Settled Status to EU nationals and their family members. A pilot Settled Status Scheme is currently being run in Liverpool in relation to this.

Where EU Citizens and their family members do not meet the criteria for settled status, they may be given time limited permission to live in the UK, known as pre-settled status.

Here we take a look at the settled status scheme.

Who is eligible for settled status, pre-settled status?

The general rule is that:

  • EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for settled status
  • EU citizens and their family members who arrive by 31 December 2020, but will not by then have been continuously resident in the UK for five years, will generally be eligible for ‘pre-settled status’ (five years’ limited leave to remain in the UK). This enables them to stay until they have reached the five-year threshold when they will then be able to apply for settled status.
  • Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will be able to join an EU citizen resident here after 31 December 2020, where the relationship existed on 31 December 2020 and continues to exist when the person wishes to come to the UK. The Home Office have not yet decided how to address future children to a relationship which exists on 31 December 2020.

The Scheme, which is currently being piloted in Liverpool aims to be fully rolled out in March 2019. The deadline for applications – which must be made by all EU Citizens and their family members living in the UK - will be 30 June 2021. The application process is online and supporting documents can be scanned in as part of that process.

The requirements are set out in Appendix EU of the Immigration Rules. The requirements themselves look deceptively brief but are accompanied by detailed definitions which are almost twice the length of the requirements themselves. The Home Office has published accompanying guidance for their caseworkers considering applications – EU settlement Scheme – EU citizens and their family members. This sets out the requirements in more detail, provides examples of likely scenarios and documents caseworkers should expect to see in support of applications.

What are the overall requirements?

An applicant must:

  • make a valid application
  • meet the Eligibility requirements
  • not be refused on the grounds of Suitability.

What is a valid application?

A valid application is made where:

  • the correct application process has been followed
  • the application fee has been paid (where applicable)
  • required proof of identity and nationality have been provided
  • required biometrics (fingerprints and photographs) have been provided.

An application will be rejected as invalid where it does not meet the above requirements.

What are the Eligibility Requirements?

The Eligibility requirements for Settled and Presettled status are set out for EU Citizens and their family members.

  • EU Citizens and relevant family members applying for ILR

EU nationals, or their relevant family member, applying for ILR, must be able to satisfy the decision maker that they meet 1 of 7 criteria, at the date of application. The 7 conditions require evidence of the family relationship (where applicable) and:

    • a documented right of Permanent residence,
    • valid evidence of indefinite leave to remain
    • a retained right of residence,
    • they are an EU citizen, or family member of an EU citizen, who has ceased activity,
    • they are the family member of an EU citizen who was a worker, or self-employed person and who has died
    • they are the family member of an EU citizen who has died, or that they are a dependent child
  • British Citizens who have acquired EU rights under Surinder Singh and family members

Where British Citizens have acquired EU rights, they have been able to invite family members to the UK to live with them. Those family members will be eligible for ILR where they can provide evidence of the family relationship at the date of application, and:

    • They have completed 5 years residence in the UK, or
    • They are a child under the age of 21 of the spouse or civil partner of the British Citizen (who also has, or is being granted pre-settled status) and living in the UK lawfully
  • EU Citizens and relevant family members applying for Pre-Settled Status

Where an EU citizen or their family member does not meet the criteria for ILR, they will need to demonstrate their family relationship (where applicable) and meet 1 of 2 conditions, showing:

  • the EU citizen or their family member (with a retained right of residence or not) is not eligible for ILR only because they have not completed a residence period of 5 years, or
  • the applicant is either
    • a family member of a British Citizen (who has acquired EU Rights under Surinder Singh) and has not completed 5 years residence in the UK, or
    • a child under the age of 21 years of the spouse of the qualifying British Citizen, in the UK lawfully and their non-British parent is being granted pre-settled status.

What are the Suitability Requirements?

The Home Office can refuse an application on the grounds of Suitability where the applicant is subject to:

  • a deportation order, or decision to make a deportation order
  • an exclusion order or exclusion decision
  • a removal decision, issued on the grounds of their non-exercise or misuse of EEA rights

Supervening Event

It is important to be aware of the need to show that in many circumstances, applicants must be able to show that a supervening event has not occurred. These include:

  • Being absent from the UK for over 5 consecutive years
  • One of the following events has occurred, which has not been set aside:
    • An exclusion or removal decision being made
    • A deportation order outside of the EEA Regulations

How much will it cost?

The fee for applications under the scheme being run in Liverpool are £65.00 for applicants over the age of 16 or £32.50 for children under the age of 16 at the date of application.

Where an applicant has previously been issued with a Permanent Residence card, or ILR and they can show that their status has not lapsed, they will not need to pay a fee.

It is anticipated that the same fee structure will apply when the scheme is rolled out in 2019.

Will I need to send supporting documents?

Yes. Evidence of identity, nationality, immigration status and family relationship (where applicable) will need to be provided with each application.

The guidance states that many people will have their residence checked through automated checks against HMRC data. Alternatively, where applicants need to show that they are continuously resident in the UK, they will be able to upload scanned copies of supporting documents to the online application.

Where the Home Office caseworkers require further evidence, the Home Office guidance states that they must provide applicants with a reasonable opportunity to provide it before a decision is made.

Can the Home Office refuse my application?

The guidance states that there is no basis to refuse a valid application which meet the Eligibility and Suitability requirements, but that where those requirements are not met, an application can be refused.

It is understood that further information will be published in relation to refused applications in due course.

As the scheme is still being finalised, it is important to stay informed and look out for changes to the requirements. Clifford Johnston’s immigration solicitors, Sumita Gupta and Naila Kosar are able to assist with any queries that you may have on  0161 975 1900