On 29 March 2017, when Brexit was announced, EU, EEA and Swiss citizens resident in the UK were left with an uncertainty as to their status in this country. However, since then, the government have provided surety by putting the EU settlement and pre-settlement schemes in place. The schemes are open until 30 June 2021 for applicants who are resident in the UK prior to 31 December 2020, in other words, prior to the end of the transition period. Since the launch of the schemes on 30 March 2019 many applicants have praised the system whilst others experienced technical issues.
The Schemes
The settlement scheme is designed for those who have been in the UK for a period of five years or more. Those who have not reached this requirement can, however, apply for the pre-settlement scheme with the option of applying to the settlement scheme once being resident for the five years. Applicants may also include their non-EU close family members on the scheme.
The application process is proposed to be straightforward and is free of charge. It involves a three-step online application form which may be accessed by computer, tablet or phone. In order to proceed with the application, it is required to have proof of identity, proof of residence and a completed criminality check. Note, only serious criminal offences impact applications.
Once the application is complete, if successful, applicants will receive digital proof of their status in the form of a decision letter from the Home Office. The current processing time is five working days however it may take up to one month.
A successful pre-settled status is effectively equivalent to limited leave to remain which allows the applicant to remain in the UK for five years. Being granted a settled status has the effect of being granted indefinite leave to remain leaving room for the applicant to apply for British citizenship.
Challenging a decision
The decision letter should include reasons for rejecting or refusing an application, on occasion the Home Office will request further information. The letter should set out whether a further application or appeal may be made, and if administrative review is available.
In some circumstances, pre-settled status may be granted when settled status was applied for. It is possible to reapply, free of charge, for settled status however it is advisable to provide further documentation supporting the application. If no further evidence is available, an administrative review may be requested within 28 days of the decision. The request should be accompanied by a payment of £80 which is refundable if the Home Office amend their decision.
If the application for the EU settlement scheme was made after 31st January 2020, it may be possible to appeal the Home Office’s decision to grant pre-settled status rather than settled status. If the appeal is written, it has a refundable fee of £80, otherwise, an appeal hearing will cost £140 which is also refundable. An appeal may be appropriate if witness evidence is available rather than documentary and, in the circumstances, when an application for administrative review is refused. This process is usually time consuming and it may be more suitable to apply for an administrative review or reapply on the settlement scheme.
In the unlikely event the application is refused entirely, the decision letter will determine whether the option to reapply is available.
Coronavirus & the scheme
A significant concern is that applicants on the pre-settled status will not be able to extend their status once the five-year period has ended. This could potentially result in many pre-settlers being forced to switch to another immigration category if they are unable to fulfil the requirements for settled status. A condition of pre-settled status is the requirement to be resident in the country for a minimum of six months per year. Any longer absences will potentially cause issues with a future settlement application.
Absences have become an issue recently due to the coronavirus pandemic with many pre-settlers concerned about returning to the UK. However, the Home Office have stated that a mere reluctance to return to the UK does not constitute an ‘important’ reason to be absent for more than the six-month permitted period. This has raised concerns about EU citizens’ status abroad who have concerns regarding traveling during the pandemic. The Home Office provided discretionary exceptions for those who have either suffered from coronavirus themselves or reside with others who have. Another exception is if travelling to the UK is unavailable thus making it impossible to return to the UK.
It may be possible for EU citizens abroad to travel to the UK prior to 31 December 2020, and then reapply for the pre-settlement scheme. If this is unavailable, a potential alternative is to reapply for the scheme whilst abroad, on the condition that the six month period has not ended.
