European Citizens’ Rights and Settled Status · 2020. 11. 5. · Regulations (for...

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Information correct as of 30 October 2020

Presentation by www.seraphus.co.uk

The Withdrawal Agreement

●The UKG is launching a new immigration system on 01 January 2021 which will cover EU citizens who have not lived in the UK before who wish to move here for visits, work and study ●Our focus is on implementation of the Withdrawal

Agreement (WA) which is there to protect the rights of those EU citizens and family members who live in UK already (and before end of transition period on 31 December 2020)●EU free movement law will end on 01 January 2021 but there

will be a 6 month ‘Grace Period’ until 30 June 2021 for those covered by the WA to apply UK for their residence status ●The Home Office (HO) is the UKG department charged with

implementation of if the this part of the WA●There are separate agreements between the UK and the EEA

countries and Switzerland which guarantees the same rights


Citizens’ rights in the WA

●Part 2 covers citizens’ rights (general provisions, residence rights, frontier workers, professional qualifications and social security)●The WA allows for a constitutive application process and for

evidence of status to be issued in digital form (Article 18)●The EU Settlement Scheme (EUSS) is the UK domestic

implementation of the residence rights part of citizens’ rights only (WA Title II Chapter 2)●But… The UK government has designed the EUSS to include

more EU citizens than those covered by the WA. This is important as not everyone who is granted EUSS status has rights under the WA (it is confusing to know who is covered by the WA and who is not!)


EU Settlement Scheme

●EU free movement law will cease to apply on 01 January 2021●This has necessitated a scheme to provide lawful residence

status to eligible citizens under the UK Immigration Rules (domestic law)●This is what is known as the EU Settlement Scheme

(EUSS) which free to apply to ●This scheme to cover all those EU/EEA/Swiss citizens and family

members living in the UK before 31 December 2020

EU Settlement Scheme


The EU settlement scheme

●Applications under the EUSS are for one of two statuses:●Settled status - lived in the UK for 5 years when

they apply●Pre-settled status is for who have not lived in the

UK for 5 years by 30 June 2021●Be aware of the difference between the residence deadline and the application deadline ●The residence deadline is 31 December 2020●The deadline to apply is 30 June 2021

The EUSS

●The application is free and based on residence in the UK●This means the Home Office (HO) will not ask for :

●Evidence of exercising 'treaty rights' in most situations●Evidence Comprehensive Sickness Health Insurance (Students

and Self-Sufficient persons)

● In essence this means that the HO will look at how long you have been resident in the UK for and not what you have been doing while resident in the UK


The EUSS

● ALMOST ALL EU/EEA/SWISS CITIZENS AND FAMILY MEMBERS WHO WANT TO STAY IN THE UK

HAVE TO APPLY TO THE EUSS BEFORE 30 JUNE 2021●Those with Permanent Residence documents need to apply●Non-EU family members need to apply●Children need make their own applications unless born or

become British or Irish before 30 June 2021●There is an exemption for those who hold Indefinite Leave to

Remain (ILR). But… they can and probably should apply as well ●A dual EEA / British citizen cannot apply (but their family

members possibly can and will need to if not British / Irish)● Irish citizens are not required to apply but can do so if they

want to


Vulnerability Points

●The consequences of a citizen who is required to apply not doing so is that they will become unlawfully resident ●From 01 July 2021, they will face the hostile immigration

environment which means losing: ●the right to work, ●the right to rent property●to receive free secondary NHS treatment●access to DWP benefits and most social assistance●the right to hold a bank account●the right to have a driving licence

●Ultimately if no EUSS status is applied for and granted, the person faces immigration detention and removal from the UK



● If citizens do not know about the EUSS they will not make an application - has the publicity and outreach work reached all eligible EU citizens? ● If an EU/EEA/Swiss citizen has lived in the UK a long time they

may incorrectly feel that they are exempted / if they are married to a British citizen they still may need to apply●How does a citizen know that their ILR remains “valid” - the

two year rule?●Not all children born in the UK are automatically British, the law

is complex and often needs a lawyer to understand●For people who miss the application date, will talk about late

EUSS applications in more detail


Family members

●Family members of an EU/EEA citizen who can enter the UK anytime: ●Spouse or Civil partner ●Durable partner ●Dependent children and Dependent parents

●BUT! The relationship must have existed on 31 December 2020 and at the time that they enter the UK (except future children)●All other (extended) family members must be have applied to

the Home Office for recognition by 31 December 2020


Key steps

●To apply there are 3 or 4 things that you must do:

1. Make a valid application by proving identity and nationality

2. Prove length of residence in the UK

3. Undergo a criminality check (for over 18s)

4. non-EU/EEA/Swiss family members only - prove relationship to EU/EEA/Swiss citizen

●The application process is mainly online unless the applicant is unable to use the digital system - they can use a paper form●Some applications have a mandatory paper application form but

these are for the more complicated cases

Making a valid application


Proving Identity


Proving Identity

● Identity is verified by a valid passport (for all) or ●Valid national ID card (for EU/EEA/Swiss citizens) ●Valid Biometric Residence Permit (for non-EU/EEA/Swiss) ●Valid Biometric Residence Card issued under the EEA

Regulations (for Non-EU/EEA/Swiss citizens - can use App)

●An App will check biometric chips and transmit identity data to the HO (only available on Android, and iPhones 7 and above)● If you cannot use the App then there are scanning locations or

you can send the document to the HO● If you are a non-EEA applicant and do not have Biometric

Residence Card, you have to attend a visa centre



●The HO may accept alternative evidence of identity and nationality 'where the applicant is unable to obtain or produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons’

●There are groups of citizens who may not have valid identity documents and there have to meet the above test:●Victims of domestic abuse or victims of trafficking ●Children in care (particularly where parents’ consent is needed)●Homeless / rough sleepers ●Disabled persons who cannot physically renew their documents

●An applicant cannot apply to the EUSS scheme without any form of ID as they will not be able to show their EU nationality

Online application form

Validity: Application type



●For non-EU/EEA/Swiss applicants, the EUSS application process requires them to evidence that they have a relationship - current or former - with an EU/EEA/Swiss citizen●They also have to show that their EU/EEA/Swiss sponsor was

resident in the UK at the same time they were●This can be difficult to prove where the relationship has ended,

particularly where the EU/EEA/Swiss citizen was absence or uncooperative or has left the UK ●For those applying as primary carers of EU/EEA/Swiss children

or children of EU/EEA/Swiss citizens, the application process and evidence required is very complicated and may need a qualified legal adviser to assist


Length of UK Residence


Meaning of continuous qualifying period

●All continuous qualifying periods (called continuous residence) must begin before 31 December 2020 (unless joining family member)● In most situations Settled Status is granted after 5 years of

continuous residence; this has a specific legal definition●The applicant must not have been absent from the UK for

more than 6 months in any 12 month period otherwise continuous residence is broken (in one stretch or cumulatively)●One period of absence of more than 6 months but which do

not exceed 12 months is permitted for an important reason:● childbirth● serious illness● study● vocational training●overseas posting

●Any period of compulsory military service or connected to Crown Service is permitted



●Some applicants cannot meet the continuous residence criteria because of the travel impacts of CV19 / taking care of family members / their economic situation meaning they have had to leave the UK ● If an absence exceeds 12 months - this always breaks

continuous residence (unless military service / overseas Crown Service)●An applicant cannot have 2 periods of absences from the

UK between 6-12 months for a good reason●Some EU/EEA/Swiss citizens planning to move to the UK before

31 December 2020 could not do so and will not be eligible to apply to the EUSS (for example students studying online)●Should there be a change to the the definition of continuous

residence because of the unforeseen and extraordinary impact of CV19 in 2020?


Residence: Proof

●The online application will automatically check HMRC and DWP for evidence of residence based on employment, self-employment, benefits claims or state pension using the applicant's NI number (if provided)●The automatic check will not see any data beyond an ‘ongoing

relationship’ and will be limited to going back 7 years ●Gaps in records can be supplemented with addition

proof of residence by uploading scanned documents●A non-prescriptive list of acceptable residence evidence can be

found on the gov.uk website - this list is just for guidance as the applicant can submit copies of any evidence which demonstrates UK residence ●The online system will tell you at the point of application

whether you need to upload more residence evidence and the HO can contact you by email to request more evidence


Residence: Proof



● It is the applicant’s responsibility to provide the evidence that shows they have continuous residence that began before 31 December 2020●For EU/EEA/Swiss citizens who move to the UK close the

residence deadline, they may be challenged on whether they were resident before the cut off● It is relatively straightforward to demonstrate residence to be

granted pre-settled status - in the future a full 5 years of evidence is needed to be granted settled status, this could be challenging for : ●Victims of domestic abuse or victims of trafficking ●non-EU/EEA/Swiss citizens no longer in a relationship ●Homeless / rough sleepers ●The Roma community ●Those in irregular employment situations / seasonal workers


Criminality

●The HO intends to identify serious or persistent offenders, or anyone who poses a security threat ●These applications will be refused on suitability grounds●A declaration about unspent criminal convictions or

any ongoing police criminal investigation or trial is required by applicants aged 18 or over ●This applies to convictions and investigations in the UK or

overseas ●A false declaration about criminal convictions or criminal

investigations can lead to status being taken away in the future


Criminality



●Suitability assessments can be highly complicated and it is important that each case is considered on the individual’s specific background●This is an area of the EUSS where it is very important the

applicant knows what this rights under free movement law are ●A qualified advisor may be required to help understand the

legal situation and to assist make apply with the right evidence ●Very little information about the EUSS has been made available

to EU/EEA/Swiss citizens who are serving prison sentences●EU/EEA/Swiss citizens without 5 years of continuous residence

will not be eligible to apply to the EUSS if their sentence finishes after 31 December 2020


Submission


Certificate of Application

●This is a Certificate of Application ●This is sent to your

email address once you have mad a valid application ● If you do not receive

this letter then your application is not complete and you need to contact the SRC to check why●As long as you have

this letter, your application will be processed by the HO


How long will my application take?

●For EU/EEA/Swiss citizens it is supposed to take between 5 working days and a month for complete applications to be processed if no further information is required●An application is likely to take longer than a month to process if:

●The HO needs to ask you for more information about your application● you are a non-EU/EEA/Swiss citizen, particularly of the

relationship to the EU/EEA/Swiss citizen is not known to the HO● If you have any criminal convictions

● If your application is delayed you will receive very limited information about what is causing of delay●Remember, as long as you have a Certificate of Approval your

application will be decided even if there is a delay


Granted: Pre-settled status

●Pre-settled status is a limited status that will expire after 5 years●You will need to maintain continuous residence and where

relevant, your family relationship to apply for settled status later●The same rules on continuous residence apply to holders of

pre-settled status and can be broken in the same way●Holders of pre-settled status must apply for settled status before

the expiry of their pre-settled status●You can apply for settled status as soon as you can show that you

have been living in the UK for 5 continuous years●Holders of pre-settled status may lose this status if they commit a

criminal offence (they may face deportation action)


Granted: Settled status

●Settled status is a indefinite status that will not expire as long as you comply with the limited conditions●Settled status may allow the holder up to a 5-year absence

(4 for Swiss nationals) from the UK before the right to live in the UK is lost●Holders of settled status may lose it if they commit a criminal

offence (they may also face deportation action)●Holders of settled status can apply for British ('naturalisation')

citizenship but are not required to do so to retain lawful residence●Note that those who wish to apply for British citizenship must

be able to show they have 5 years or 3 years lawful residence and up to 10 years of residence under the ‘good character’ rule


Granted: Digital status

●www.gov.uk/view-your-settled-status


Granted: Digital status

●For EU/EEA/Swiss citizens, evidence of pre-settled or settled status will be in digital form ●Accessible via ID number and date of birth (and a single-use code

security code) ●The idea is that that holder of status updates their digital profile

with changes to phone number, email, address, name ●You can also update your digital profile when you change your ID

document ●Non-EU/EEA/Swiss citizen family members holding

pre-settled or settled status will be issued with a Biometric Residence Card (unless they already hold one which can be used until it expires)



● It is very important that holders of pre-settled status remember that they need to apply for settled status before it expires - failure to do so will mean the person becomes unlawful ●Those who need to convert from pre-settled status to settled

status must maintain good documents and records to prove their 5 year continuous residence●Pre-settled status does not meet the right to reside test for

DWP benefits and so holders will need to prove their qualifying activities when they apply● It is very important that holders of EUSS status understand

how to access their digital profile as they will need to be able to prove their status in the future ● There needs to be a widespread information campaign by the

UK government to ensure that employers, landlords, the NHS, government departments, banks understand digital status


Refusals / Wrong outcomes

●Currently, not many cases are actually ‘refused’ on suitability or eligibility grounds but this can happen●Depending on the basis of the refusal will dictate what the best

approach to take in challenging the decision ●There is also an outcome where an applicant with 5 years

continuous residence receives pre-settled status because of a lack of evidence - this is the wrong outcome for that citizen● If there is an wrong outcome before 30 June 2021 you can:

●Reapply to remedy the refusal ground ●Apply to appeal the decision (generally only available if the

application was made after 31 January 2020)●Ask for an Administrative Review by the HO



●Being refused EUSS status means the citizen may have no right to stay in the UK and so they will need qualified legal advice to understand the basis of the refusal and if there is anyway to challenge it or it they have another basis to stay in the UK ●Appealing refusal decisions is complicated, stressful and can be

expensive if the appeal requires a lawyer ● In the future more citizens are going to be refused when they

try to covert pre-settled status into settled status (for example, because the lack of residence documents)●Where a citizen who has lived in the UK for 5 continuous years

receives pre-settled status, this is not recorded by the HO as a refusal even though the wrong status is granted●Citizens may not be aware that they should challenge this

outcome as it is not correct for the situation


Missed deadlines ● If you miss the 30 June 2021 deadline you can apply late●But only with a 'good reason' for the delay●You will have a reasonable period to apply ●But an interruption to rights and entitlements will

occur and you will be unlawful until you are granted status●SO… apply before the 30 June 2021 deadline!

EUSS Assistance and further information


Available EUSS assistance / non-English language guides

●EU Settlement Resolution Centre - call 0300 123 7379 between Monday to Friday (excluding bank holidays), 8am to 8pm, Saturday and Sunday, 9:30am to 4:30pm●Charity / community organisations - HO has funded

organisations to assist vulnerable applicants with their EUSS applications for free, search gov.uk for a list●Identity Scanning Locations - search gov.uk for a list of

Local Authority locations ●Assisted Digital Service - call 03333 445 675 or text

“VISA” to 07537 416 944 ●Home Office - EUSS guidance here (all EU languages)●European Commission Publications Office - Brexit

and EUSS information leaflet here (all EU languages)


Vulnerability Assessment: Barriers to EUSS status

●Two sorts of barriers people face identified in the presentation:●Barriers in the EUSS process such as those who struggle with the

IT / digital process or do not have a valid ID ●Barriers where the applicant needs to meet complicated legal

criteria and legal assistance is required (eg. cases with a criminal conviction where understanding the level of FMD protection is crucial)

●Vulnerable Applicants - this includes categories like children in care, victims of trafficking, victims of domestic abuse, the elderly ●Also vulnerable are those with limited English language skills,

those who have lived in the UK a long time, those with ILR already, anyone who does not know about the EUSS


Vulnerability Assessment: Withdrawal Agreement rights

●Although the grace period to apply to the EUSS will end on 30 June 2021, there are many areas that require more assistance and input to ensure that EU/EEA/Swiss citizens and their families are able to access their rights in the UK ● Just providing EUSS status is not enough, the end of free

movement is a huge change and means that citizens, government departments, local authorities and other stakeholders all need to adjust●The following are some areas that need to be addressed in the

immediate and long term future: ●Continued outreach to ensure all citizens who need to

apply are made aware ●Free support for those who still need to make applications

and for those who miss the EUSS application deadline and need to make a late application with a good reason



●Being aware that you need to switch from pre-settled status to settled status in the future ●Being aware what the continuous residency rules are during

the period of pre-settled status and that failure to abide will lead to refusal of settled status●Understanding the different conditions attached to the

different EUSS status ●Understanding rights associated with pre-settled and

settled status e.g. the right to work, rent, study, access NHS, claim public assistance, receive a pension●Understanding how to access EUSS digital status to show

that you have these rights (eg. accessing when they used someone else's phone / email, using the share code facility)



●Education required to avoid the discrimination of EU/EEA/Swiss citizens because of the end of free movement and the move to digital status●Education of stakeholders who will need to check EUSS

status in the future e.g. employers, landlords, the NHS, government departments, banks understand digital status●Oversight by the UK government / the IMA to ensure

citizens do not face systemic denials of rights ●Awareness that for some there will be a negative

psychological impact for EU/EEA/Swiss citizens being asked to produce evidence of lawful residence (by the NHS, at the border, the police, your employer, landlords, banks)


Useful Information

●Home Office EUSS Guidance / Information on gov.uk ●EU Settlement Scheme: applicant information (general)

● EU Settlement Scheme: evidence of UK residence

● EU Settlement Scheme: evidence of family relationship

● EU Settlement Scheme: Using the ID checking App

● EU Settlement Scheme: application processing times

●EU Settlement Scheme: caseworker guidance

●EU Settlement Scheme: local authorities toolkit

●EU Settlement Scheme: community leaders toolkit

●EU Settlement Scheme: employer toolkit

Remember to apply, apply before the deadline,

and spread the message! Thank you!

European Citizens’ Rights and Settled Status · 2020. 11. 5. · Regulations (for...

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