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Post Brexit: Settled Status
The "EU Settlement Scheme" will enable some EEA nationals, and certain non EEA national family members of EEA nationals, who are already living in the UK as at 31st December 2020 to get a new immigration status - "settled status under UK immigration law" which will enable them to claim benefits including Universal Credit.

Failure to apply could mean ending up with no right, not only to claim benefits, but to live or work in the UK.

What rights to benefits does Settled Status give to an EEA national / their family member? 

The EU Settlement Scheme "Statement of Intent" from June 2018 is a little vague in places  but it appears that the rights of someone with settled status will allow them the same rights to benefits as a British Citizen.  This is because 'settled status' is also called "indefinite leave to remain" in the documents.

Who can apply for Settled Status?

  • EEA nationals with "permanent residence status".

  • EEA nationals and certain family members who, by 31st December 2020, have been continuously resident in the UK for 5 years, without any absence of more than 6 months in a 12 month period (some longer periods allowed in certain circumstances). Follow the link for the definition of continuous residence.

  • EEA nationals who have been continuously resident for less than 5 years, by 31st December 2020, in specific circumstances.

  • EEA nationals and certain family members who have not been in the UK for 5 years by 31st December 2020 are allowed to "work towards" 5 year's continuous residence. They will be able to apply for "pre-settled status" to build up to the 5 years needed to apply for 'settled status'.

Note that people whose only right to reside is a derivative right (eg through being the primary carer of a child in education) will not be able to apply for 'settled status' under the EU Settlement Scheme but will have some protected rights - more on this page.

When can people start applying for settled status?

A pilot, which  involved 4,000 people from universities and hospitals in the North West of England, started on 28th August 2018. A second phase of the pilot (for a similar group of people plus some under 18s under LA care and some receiving support from community organisations) began on 1st November 2018 and runs until December 21st 2018. Everyone will be able to apply from 30th March 2019.

How do people apply for settled status?

Applications will generally be online although the government has said there will be an alternative for those unable to access online, plus an assisted digital support scheme.

What will applicants need to prove?

ID & Nationality
They will need to provide proof of identity and nationality either by post or by uploading a biometric passport or biometric national identity card (or for non EEA national family members a biometric residence card / permit) digitally via a smartphone app. Alternative evidence may be accepted where they are unable to produce a document “due to circumstances beyond their control or to compelling practical or compassionate reasons”. 

Residence in the UK
Unless they already have proof of permanent residence status they will need to provide evidence to the Home Office that they have five years' continuous residence in the UK.
Alternatively they can upload documentary evidence of their residence - list of acceptable documents in Appendix A of the Statement of Intent

Permanent Residence document already in place?
If an applicant has this they will be able to exchange it free of charge, “subject only to criminality and security checks”. The Home Office will also need to confirm that their permanent residence status has not lapsed, or if it has lapsed it is not through an absence of more than 5 consecutive years (or where they have"indefinite leave to remain" status, two years.)  The applicant will "self-declare" this and the Home Office will consider whether this is true on the basis of balance of probabilities.

Photographic evidence
They will need to provide a photo of their face, either - if they have a Biometric Residence card - by uploading a passport-style photograph digitally (but not the same photo as in their passport); or by going to an "application centre" (could include Post Offices?) to enrol their fingerprints and have their photograph taken. 

Criminality and Security
All applicants will be subject to criminality and security checks. Criminal convictions after 31st December 2020 are more likely to lead to a refusal than earlier convictions; minor offences, such as parking fines, will not be grounds for refusal, although applicants are advised to declare all offences, however minor.

Cost 

Subject to approval by Parliament, the application for 'settled status' will cost:
£32.50 for children under the age of 16 - but nothing for children in care;
£65 for each adult - but nothing for those with indefinite leave to remain; or permanent residence (with a certificate); those granted pre-settled status applying for settled status after April 2019.

Deadlines

There is a risk that EEA nationals might fail to apply for “settled status” by the deadline - currently: 30th June 2021, meaning they will then be unlawfully resident in the UK and unable to access benefits. Home Secretary Sajid Javid has promised a “common sense approach” to such people, provided they had a good reason for failure to apply in time. We assume this means there will be discretion to accept late applications - but this cannot be guaranteed.

Evidence of settled status once granted

Successful EU nationals will have evidence of their status “in digital form”, ie they will not be given a paper document. Also, any non EEA national family member of an EEA national who is given settled status will also be issued with a Biometric Residence Documents if they don't already have one.

What if settled status is refused?

if an application is incomplete, or if it is refused and the application was submitted before 30th March 2019, a Home Office caseworker will contact the applicant to give them a reasonable opportunity to rectify it, eg by supplying additional evidence.  This is called an administrative review.
However if it is refused on “suitability grounds” (eg criminality),  they would have to use judicial review - a lengthy and expensive process

Applications made after 30 March 2019, of refused, will instead have a statutory right of appeal before an independent judge who will decide whether they should have been granted status. Article 18(1)(r) of the draft Brexit withdrawal agreement.

Post Brexit: Pre-Settled Status
What if the EEA national / family member does not have 5 years continuous residence?

  • EEA nationals and certain family members who are "working towards" 5  years continuous residence will be able to apply for "pre-settled status" to build up to 5 years.

    These will be people who
     have entered the UK by December 31st 2020, who have not yet been continuously resident in the UK for 5 years by that date, and who  do not come under one of the circumstances to allow less than 5 years residence - described on this page. 

  • The Statement of Intent refers to pre-settled status as "Limited Leave to Remain" under the Immigration Act 1971, however it doesn't appear that the limitation of "no recourse to public funds" which affects some people subject to immigration control with "limited leave" - could possibly apply to people with pre-settled status.

  • Non EEA national family members who have had pre-settled status for 5 years - can normally apply for settled status.

  • Note that those with only a derivative right to reside (eg primary carer of an EEA national child in education) will not be eligible for pre-settled status but will receive some protection - click here for more information.

  • The Statement of Intent says that people with pre-settled status: "will have the same access as they currently do to healthcare, pensions and other benefits in the UK."

  • Application for pre-settled status costs the same as for settled status- £65 or £32.50 for children - but once someone has pre-settled status they will not need to pay again for settled status. They will be sent a letter before the 5 years is up to remind them to apply for settled status.
     










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