Overview: subject to Brexit negotiations
When the UK leaves the EU, free movement will be allowed to continue under a blanket period, running from exit date for approximately two years. This transitional period will go ahead regardless of whether or not the UK leaves with a deal, but the precise dates are subject to the Brexit negotiations.
EU citizens and family members who want to continue to live and work in the UK beyond 30 June 2021 (or 31st December 2020 if there is a no-deal Brexit), will need to apply to the EU Settlement Scheme. (Those who have indefinite leave to enter or remain, or who have citizenship, do not need to apply to the scheme.)
The EU Settlement Scheme allows those EU citizens residing in the UK to continue to live, work and study here. It also means they continue to be eligible for:
- Public services, such as healthcare and schools
- Public funds and pensions
- British citizenship, if they want to apply and meet the requirements.
Eligible applicants will receive a ‘settled status’, which is a brand new legal immigration status. The application scheme was fully opened on 30th March 2019 and applications must be made by 30 June 2021 (or 31st December 2020 if there is no-deal).
Eligibility for settlement status
To be eligible, an individual:
- Must be an EU citizen or a non-EU family member of an EU citizen, this includes those with a UK permanent residence document. You do not need to apply if you have indefinite leave to remain or enter, or you are an Irish citizen*, but you can if you want to.
- Must be resident in the UK by 31 December 2020. Those who have been resident for five continuous years will be eligible for ‘settled’ status. This who have been a resident for fewer than five continuous years will be eligible for ‘pre-settled’ status.
- Must not be a serious or persistent criminal, a threat to national security, or have a deportation order, exclusion order, exclusion decision or removal decision against them.
(Eligible nationalities: Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland*, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden or Switzerland. * Irish citizens do not need to apply to the scheme to protect their rights in the UK, though they are able to do so if they wish. Non-Irish family members of Irish citizens will need to apply to the EU Settlement Scheme if they wish to remain in the UK.)
Applications for settlement status
The scheme can be accessed online using a computer, tablet or mobile phone (although Apple products are currently unable to support the application). Those wishing to apply for the scheme but do not have the appropriate access, skills or confidence to complete the form can get ‘Assisted Digital Support’ if they are in the UK.
The application asks for basic factual information like your name, address and reference numbers such as your passport, national identity card or National Insurance number. The scheme is a three-step process which checks:
- Proof of identity
- Proof of residence
Processing times are currently reported to be quick, with applicants receiving a decision within 1 to 4 days at the latest.
(The settlement status scheme was due to be subject to fees, however on the 21st January 2019, The Prime Minister, Theresa May announced that this would no longer be the case. Those who have already paid a fee (as part of the phased roll out) may have their fees reimbursed to them.)
Settled or Pre-Settled Status
Applicants may expect to receive either a ‘settled’ or ‘pre-settled’ status. Those who have lived in the UK for five years or more may be eligible to apply for a ‘settled status’. Those who have lived in the UK for fewer than five years may be eligible for a ‘pre-settled status’ in the first instance and can swap to ‘settled’ status when they reach five years continuous residence. It should be noted that a settled status is not the same as citizenship, but those with settled status and at least six years residence may apply for citizenship if they wish to.
Evidence of a right to work
Currently and during the blanket period, EU citizens will continue to have the right to work in the UK as normal. They can continue to evidence their right to work in the same ways that they can now. Those who have already applied and received an EU settlement status may choose to use this as evidence of their right to work now!
Once the blanket period ends, an EU passport (for example) will no longer be evidence of the right to work. This applies to both existing as well as prospective employees. Evidence that the individual has a settlement status will be required (unless they were exempt for one of the reasons listed above). In the future, those EU citizens who chose not to apply to the scheme or could not apply because they were not residents in the UK during the specified time, will require an employer to sponsor them on a skills basis.
This status will be in a digital form (no physical document!) and can be viewed by employers through the Home Office’s new online service. Employer’s will need the individual’s date of birth and their right to work ‘share code’ which is sent to the individual. (Individuals should not expect to receive a physical document unless they are both; from outside the EU and do not already have a biometric residence document.)
Guidance for employers
Although there is no legal obligation for employers to communicate the EU Settlement Scheme, you may wish to signpost employees to the information that the Government is providing. The government have published an EU Settlement Scheme: employer toolkit, which guides employers to raise awareness of the scheme and to support staff who may be affected. Employers are not expected to interpret the information provided by the Government and indeed employers should be careful not to provide immigration advice, unless qualified to do so.