Here’s what you need to know about being resident in the U.K. after Brexit, writes Colin Senez
EU, EEA and Swiss nationals and their family members who are resident in the UK before the date the UK leaves the EU should be making every effort to ensure they obtain either settled status or pre-settled status as soon as they are able, and in any event before 31 December 2020. The status which is available to each individual will depend on their personal circumstances.
Settled status is available to individuals who have lived in the UK for a continuous period of five years prior to the specified date, and since having accrued the necessary five year continuous period of residence in the UK, no ‘supervening event’ has occurred. A continuous period of five years requires presence in the UK for at least six months in any 12 month period. A supervening event includes being absent from the UK for a period of more than five years.
Settled status allows the holder to live and work in the UK indefinitely subject to the holder not being absent for more than five consecutive years from the UK.
Pre-settled status is available to individuals who are living in the UK but are unable to show that they have lived in the UK for a continuous period of five years, or they have lived in the UK for a continuous period of five years but a supervening event has occurred which prevents that individual from being able to use their previous residence to obtain settled status.
Pre-settled status allows the holder to live and work in the UK for a period of five years, which will allow the holder of pre-settled status to accrue time towards obtaining settled status.
It is important that holders of pre-settled status are mindful of the requirements of settled status, namely that they are continuously resident in the UK for a period of five years or more. In practice, this means that they must spend at least six months in the UK in any 12 month period while holding pre-settled status in order to be eligible to make an application for settled status at the end of the five year period.
This is especially relevant to individuals who travel frequently, as they should be careful to ensure that they remain within the requirements for settled status. It is critical that the opportunity is not missed, as each individual only has one opportunity to obtain settled status.
Children under 21 are able to ‘link’ their applications to those of their parents to obtain the same status as their parents. However, they are also able to make applications based on their own circumstances if it is more advantageous to do so.
This would apply to children who have already achieved a continuous five year residence period but their parents have not. For example, where the children have attended boarding school in the UK for five years or more while their parents have been living outside the UK.
The Home Office can curtail or cancel pre-settled or settled status in circumstances where they deem it is conducive to the public good (after the specified date), for example, if an individual has committed a serious criminal offence.
Applications for pre-settled status or settled status must be made by 31 December 2020.
Individuals arriving after the specified date
The EU Settlement Scheme does not deal with the position of EU, EEA or Swiss nationals and their family members arriving in the UK after the specified date.
Those arriving in the UK after the specified date will not be eligible to make applications for either pre-settled status or settled status. Instead, they will be able to make an application for European Temporary Leave to Remain (ETLR). ETLR will allow the successful applicant to stay beyond 31 December 2020, and for a maximum period of 36 months.
During that period, a holder of ETLR will be allowed to work in the UK, and time spent with ETLR will accrue towards an application for indefinite leave to remain (not settled status). Indefinite leave to remain applications, in most circumstances, require a lawful period of residence in the UK of five years or more (among other conditions). This means the holder of ETLR will need to obtain an additional visa once their 36 months have elapsed. An application will need to be made under the new immigration system, implementation of which has been promised from January 2021.
If an individual arrives after the specified date, and does not make an application forETLR they will be allowed to stay and work in the UK until 31 December 2020. After that date if an individual does not have a status – whether it is settled status, pre-settled status or ETLR, then that individual will be living in the UK unlawfully from 1 January 2021 onwards.
For those who only intend to spend a short period of time in the UK between the specified date and 31 December 2020, it may be that no action is required. However, those who wish to stay in the UK on a more permanent basis should consider making an application as soon as possible for the most advantageous right which is available to them to ensure that they are able to live and work in the UK beyond 31 December 2020.
NB: The position set out in this blog is correct at the date of this publication but does not contain or constitute legal advice, and no reliance should be placed on it. Legislation and government policy is subject to change.
Colin Senez is an associate at boutique private wealth law firm Maurice Turnor Gardner