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Post Brexit: What should an EEA National do now?
WARNING
Under the Immigration and Asylum Act 1999 it is illegal to give immigration advice to an individual unless the person giving the advice is registered with the The Office of the Immigration Services Commissioner (OISC). 
The OISC has issued guidance giving examples of legal and illegal advice - for example that a Polish community support group could produce an information booklet written but it would be illegal to meet with a particular individual to advise on their immigration status.

What do EEA nationals and family members of EEA nationals need to do now to protect their rights to benefits?

EEA nationals and certain family members will be able to apply for 'settled status' and therefore will be able to claim benefits including Universal Credit. But there will be some EEA nationals currently living in the UK who will not be granted 'settled status' because they do not meet the conditions for it, or who may meet the conditions but struggle to provide the evidence.

So we have put together this list of what an EEA national could do now:

  • If they already have permanent residence status and the certificate/card to prove it, then they will be able to apply for 'settled status' and will be given it. So these EEA nationals do not need to do anything now, but should apply for 'settled status' as soon as they are able to.

  • If they already have permanent residence status but do not have a permanent residence certificate /card to prove it they could contact the Home Office to apply for one ( £65) to avoid having to prove their status later. Application from gov.uk here.

  • If they have already been continuously resident in the UK for 5 years they should apply for 'settled status'' as soon as possible to avoid any backlogs due to a last minute rush. They need to consider what evidence they have of their residence, and start to collect this now. (See Appendix A of the Statement of Intent and Appendix EU to the Immigration Rules.

  • A family member of an EEA national, who has been continuously resident in the UK for 5 years should do the same - if they need proof from their family member they need to consider how they can obtain this. 

  • If an EEA national is only able to currently claim benefits because they have a "derivative right to reside" (eg through being the primary carer of an EEA child in education) it would be advisable to acquire another right to reside - normally through getting worker status. This is because the time someone has spent living in the UK with a derivative right to reside does not count towards gaining the permanent right to reside and neither will it allow them to apply for 'settled status' through the EU Settlement scheme. The Statement of Intent does say they should be eligible for benefits under the Withdrawal Agreement but it is very vague.

  • Note that there is no physical card or certificate to prove settled status- it is only recorded digitally.


How to apply for settled status
From 30th March 2019 anyone from the EU can apply for settled status
From 21st January 2019 any EU national
with a valid biometric passport (indicated by a rectangular gold symbol that looks like a camera) can apply. 
    They will be granted settled status (effectively, indefinite leave to remain) if they've been in the UK for 5 years by 30th December 2020 (if it's a "no deal" Brexit, then by 29th March 2019).

    Link to the application form
    - here. 

        How much does it cost?
          There is no longer a charge, but those applying before 30th March 2019 have to pay upfront (£65 for adults and £32.50 for children) and request a refund.

              How soon should people apply?

                  The deadline for application is 30th June 2021 (if "no deal", it's 31st December 2020.)
                    But it's worth applying as soon as possible if they have been found to have no "right to reside" under the current Immigration (EEA) regulations 2016, or are having difficulty providing evidence'

                        Also family members who aren't EU nationals, whose current documents are due to expire, should make sure they apply while the settlement status process is open. They may want to get a settled status document, rather than renewing their existing documents, to use for things like proving to employers, landlords and banks their right to live and work in the UK, to avoid having to get an old-style EU residence document and then having to switch onto settled status.  

                            What will they need to prove, and how?

                                EU nationals will need to prove:

                                    1. Identity and nationality
                                      They can provide evidence by uploading a passport or valid national identity card digitally via a smartphone app (at time of writing only available on Androids). Those without their own device can go to an "ID document scanner location". There is other help available through the Assisted Digital Service

                                          From 30th March 2019 those who do not have a biometric document can send the documents by post instead. 
                                            The Home Office may accept alternative evidence of identity where an applicant is unable to produce a passport or ID card “due to circumstances beyond their control or to compelling practical or compassionate reasons”.
                                              Applicants will also need to “enrol their facial image” (i.e. provide a photo of themselves). This can be done on the app.

                                                  2. Five years' continuous residence in the UK

                                                      Those applying for settled status will need to show five years' continuous residence in the UK. 
                                                        This simply means having lived, or living, in the UK. More here. If they give their National Insurance Number, the Home Office will carry out automated checks of data on employment and/or receipt of benefits, held by HMRC and the DWP. 

                                                            Note that people who apply for pre-settled status (more here- scroll down) will need to show current residence in the UK.
                                                              Irish citizens will not be required to apply for settled status.

                                                                  What if they have never worked or received benefits so cannot show continuous residence from HMRC/DWP records?

                                                                      They will need to upload documentary evidence of their continuous residence.   Annex A of the caseworker guidance provides non-exhaustive lists of the type of documentary evidence which the applicant will be able to provide. The guidance says workers must work flexibly with applicants to help them evidence their continuous residence in the UK by the best means available to them.

                                                                      They may be invited to an interview.


                                                                          Family members 
                                                                            The process of applying for settled status differs slightly depending on if they are themselves EU nationals or not.
                                                                              A detailed list of which family members are eligible for the scheme on pages 21-35 of the caseworker guidance.

                                                                                  Family members will need to prove their EU national relative's EU national’s identity and residence in the UK unless they have been granted settles status.
                                                                                    Plus evidence of:

                                                                                        Their own identity
                                                                                          Their own residence in the UK
                                                                                            Their relationship with the EU national.

                                                                                            They may be invited to an interview.


                                                                                                Those who already have proof of permanent residence will be able to exchange it for settled status free of charge, as long as they can show they have not been absent from the UK for more than two consecutive years. They won't need evidence if the Home Office is satisfied “on the balance of probabilities”, that this is the case.

                                                                                                Biometric photographic evidence
                                                                                                They will also 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

                                                                                                    Who might be refused?

                                                                                                    An application might be rejected as invalid  if they do not provide evidence / biometrics, or if they fail, on at least two occasions, to attend any interview they are invited to.
                                                                                                    Appendix EU of the Immigration Rules states:
                                                                                                    "The decision-maker may decide following the drawing of a factual inference.... that the applicant does not meet the eligibility requirements...
                                                                                                    ...The decision maker may not decide that the applicant does not meet the eligibility requirements ... on the sole basis that the applicant (or family member) failed on at least two occasions to comply with an invitation to attend an interview." (our italics). 

                                                                                                        Caseworkers can refuse applications for settled status from criminals and people who fail certain security checks. Not all criminals will be refused - they will be looking at "serious and persistent" criminals - see Appendix EU of the Immigration Rules. And under Rule EU16, caseworkers may refuse an application where “false or misleading information, representations or documents have been submitted” that is “material to the decision”. They can also refuse where the applicant is subject to a removal decision under the EEA Regulations or  are subject to a deportation order or exclusion decision.

                                                                                                            Applicants will self-declare their criminal convictions in their applcation without having to submit evidence. And the Home Office will carry out its own checks through the Police National Computer (PNC) and the Warnings Index (WI). 

                                                                                                                Any decision made under Rule EU16 must be proportionate..





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