The UK is due to leave the EU on 31 January 2020.
As the draft withdrawal agreement wasn’t approved by the House of Commons by 29 March 2019, as it currently stands the UK will leave the EU on 31 January 2020.
The UK and the EU have reached an agreement in principle on the rights of EU citizens living in the UK and of British citizens living in the EU. The agreement on citizens’ rights is part of the draft withdrawal agreement which was was published on 25 November 2018 – and rejected by the House of Commons on 15 January 2019.
Nobody knows what will happen. In the meantime EU citizens who have made the UK their home want to know what they should be doing.
HAVE I LOST MY RIGHT TO LIVE IN THE UK?
No. Until the UK leaves the EU on 31 January 2020, EU citizens are allowed to live and work in the UK in exactly the same way as before.
WILL I BE ABLE TO STAY IN THE UK AFTER 31 JANUARY 2020?
Yes, according to the public statements made by the UK and the EU.
Under the draft withdrawal agreement, there will be a transition period until 31 December 2020 during which EU law will continue to apply in the UK. EU citizens will be free to live and work in the UK during the transition period.
EU citizens who have been living lawfully in the UK before the end of the transition period on 31 December 2020 will be able to continue living in the UK. They will have until 30 June 2021 to apply for a document confirming their status.
The British government has introduced the EU Settlement Scheme for this purpose. EU citizens who have completed five years in the UK are eligible to apply for settled status – a form of indefinite leave to remain which gives the same rights as permanent residence under EU law. EU citizens who have been in the UK for less than five years will be eligible to apply for pre-settled status, a temporary status which can be converted into settled status after five years.
There is no need to show that you have been exercising a right of residence under EU law, which can sometimes be complicated. Actual residence will be enough.
The EU Settlement Scheme was fully opened on 30 March 2019. If the UK leaves the EU without a deal EU citizens living in the UK on or before 31 January 2020 are eligible and they have until 31 December 2020 to apply. In the meantime all EU citizens will continue to be able to live and work in the UK on production of an EU passport or identity card.
HOW DO I APPLY FOR SETTLED STATUS?
The EU Settlement Scheme was fully opened on 30 March 2019.
To apply you need an Android phone with NFC (Near-Field Communication) contactless technology. Download the EU Exit: ID Document Check app and use it to scan your passport and your face. The app is now also available for iPhone.
After using the app you need to complete an online application.
The deadline for applying is 30 June 2021 but because of the uncertainty it is a good idea to apply now if you can.
SHOULD I APPLY FOR A PERMANENT RESIDENCE DOCUMENT AS WELL?
It is also worth considering applying for a document confirming your right of residence in the UK under EU law. If you are an EEA national and have completed a continuous period of five years in the UK as someone who is employed, self-employed, studying or self-sufficient you can apply for a document certifying permanent residence. Absences from the UK of up to six months per year do not break this continuous period. An absence of up to 12 months is allowed for important reasons such as pregnancy or childbirth, serious illness, study or an overseas posting.
The date on which you completed the five-year period doesn’t matter as long as you have not been outside the UK for a continuous period of more than two years after completing the five-year period.
This document doesn’t generally give you any new rights but you can use it to show that the Home Office has recognised your right of residence under European law. This might be useful if you run into trouble with the Home Office one day and you need to show that you are covered by the terms of the UK-EU withdrawal agreement (if there is one).
There are two more immediate reasons why you might want to get a permanent residence document. First, if you want to become a British citizen you must have either a permanent residence document or settled status. If you are granted settled status you then have to wait another year before you can apply for British citizenship (unless you are married to a British citizen) but if you have a permanent residence document you can effectively get it backdated to the date when you completed the five-year qualifying period. Second, if have a child who was born in the UK after you completed the five-year qualifying period you could potentially rely on a backdated permanent residence document to get a British passport for your child (see below).
Unfortunately, not everyone who has lived in the UK for five years qualifies for a permanent residence document – especially students and self-sufficient people who don’t have private health insurance. (Employees and self-employed people don’t need private health insurance to get a document.)
HOW DO I APPLY FOR A PERMANENT RESIDENCE DOCUMENT?
Start by working out which five-year qualifying period you will rely on. It doesn’t have to be the last five years. If you ever have had a period of five years’ continuous employment it’s usually best to rely on this because it’s the most straightforward option. You will need to show that you completed the five-year period at least one year ago if you want to go on to apply for British citizenship (see below).
Read the Home Office guidance to find out what documents you will need to provide.
The application process is much simpler than it used to be. In most cases it’s possible to fill in an online application form which is much easier to use than the infamous 85-page paper form. It’s no longer necessary to provide a detailed travel history. The number of supporting documents required has been cut down.
When you submit the online form you have to pay the fee of £65 per person. Then you need to print out the form and send it to the Home Office with your supporting documents. You have to enclose your passport or identity card unless you use a local authority European passport return service.
The processing time is up to six months but it is usually quicker than this.
If you get a permanent residence document you will still have to apply for settled status (unless you become a British citizen) but the settled status application will be free.
SHOULD I BECOME A BRITISH CITIZEN?
If you want to completely ensure that you are able to stay in the UK after Brexit, you can apply to become a British citizen after you have held permanent residence or settled status for one year (straightaway if you are married to a British citizen).
You have to get a permanent residence document or settled status before applying for British citizenship, but if you have a permanent residence document you don’t necessarily have to wait a year.
If you’re thinking of applying for British citizenship, you should provide evidence that you completed the five-year qualifying period at least one year ago when you apply for permanent residence. If you do that, the Home Office will backdate the date when it deems you to have acquired permanent residence, which will mean that you can potentially apply for British citizenship as soon as you have your document certifying permanent residence.
Before applying, check whether your country of origin permits dual nationality and whether it will impact on your tax position.
WHAT ABOUT MY CHILDREN?
If you have children born in the UK, they may already be British citizens.
Children born in the UK on or after 30 April 2006 are automatically British if at least one of their parents completed the five-year qualifying period for permanent residence before they were born.
If you completed the five-year period after your children were born you can apply to register them as British.
There are different rules for children born before 30 April 2006, and different rules again for children born before 2 October 2000.
SHOULD I WAIT AND SEE WHAT HAPPENS?
It’s not certain that the UK will leave the EU on 31 January 2020. If it does, EEA nationals living in the UK on or before that date will be able to stay even if there is no deal, according to public statements made by the British government. The deadline for applying under the EU Settlement Scheme is not until the end of 2020 at the earliest but in the current climate it’s worth applying as soon as you can.
If you qualify for a permanent residence document you should also think about getting one of these, especially if you want to apply for British citizenship or if you have children who were born in the UK and you think they might have British citizenship.
Further information on the rights of EU citizens living in the UK and of British citizens living in the EU
To find out more about your right of residence in the UK, please contact a Wolfsdorf Rosenthal immigration attorney or email Global@Wolfsdorf.com