United Kingdom: Issues for EU Citizens to Consider in Light of Brexit

This blog post provides an update on issues for European Union citizens to consider in light of Brexit.

European Union (EU) (and European Economic Area and Swiss) citizens who have already been resident in the United Kingdom (UK) are expecting no major issues after the Brexit transition period ended on December 31, 2020. So long as they were resident by the end of 2020, they can apply to the EU Settlement Scheme before the deadline of June 30, 2021. But there are several issues to be aware of regarding absences from the UK for those with pre-settled status and those relying on permanent residence to naturalize as British citizens.

Absences for those with pre-settled status. EU citizens who have pre-settled status must apply for settled status after 5 years in the UK. Pre-settled status is not extendable, so it is important that the residence requirements be met in order to qualify for settled status. Otherwise it will be necessary to switch into a different UK immigration category, such as Skilled Worker. Those with pre-settled status should not be absent for more than 6 months in any 12-month period. A single period of absence of up to 12 months is permitted for an “important” reason, which the rules specify includes pregnancy/childbirth, serious illness, study, vocational training, or an overseas posting.

Given the circumstances, the obvious question is why absences due to the COVID-19 pandemic have not been included in the EU Settlement Scheme rules and guidance. Elsewhere in the rules, absences due to the pandemic have been covered. For example, travel disruption due to the pandemic because there were no available flights or the visa application centers were closed has been a ground for absences above the usual threshold to be allowable on an exceptional basis where they can be evidenced.

The Home Office has advised that absences over 6 months for those with pre-settled status could be permitted on a discretionary basis if:

• The EU citizen, or a person with whom they are living, is suffering from COVID-19 and they are either too ill to travel or forcibly in quarantine for public health reasons; or
• There were no available flights to the UK and in essence the individual has been stranded overseas.

A general reluctance to return to the UK is not expected to be sufficient. As a result of this policy, EU citizens with pre-settled status who have had or may shortly have absences of more than 6 months in a 12-month period that are not very clearly for an important reason must consider:

• Traveling to the UK before they reach 6 months of absence from the UK; or
• Reapplying from outside the UK for pre-settled status before they reach 6 months of absence; or

Relying on permanent residence for naturalization. EU citizens who have been granted a permanent residence document under EU law (not from the EU Settlement Scheme) and who have held permanent residence for 12 months can normally apply to naturalize as a British citizen. Plus, some applicants’ permanent residence will be backdated, meaning they can apply to naturalize right away.

EU citizens should be aware, though, of a rule change as of January 1, 2021. For applications submitted in the new year:

• If the applicant only has a permanent residence document and does not have settled status, they can continue to rely on the permanent residence document for a naturalization application. They should ensure that they do not become an overstayer on July 1, 2021, by applying for settled status (from the EU Settlement Scheme) before that date if their naturalization application remains outstanding; and
• If, on the other hand, the applicant has both a permanent residence document and settled status, as of January 1, 2021, they cannot rely on the permanent residence document and instead must wait until they have held settled status for 12 months.