IMPACT – HIGH

The U.K. Home Office has published its Statement of Intent detailing how it will administer the mass registration of EU nationals currently resident in the U.K. in light of Brexit.

There are approximately 3.5 million EU citizens currently living in the U.K. on the basis of their EU passports alone, exercising their right to free movement under EU law. Under the terms of the Withdrawal Agreement between the U.K. and the European Union reached in December 2017, once the U.K. leaves the EU on March 29, 2019 (“Brexit”), there will be a transition period extending free movement rights until December 31, 2020 during which time EU nationals and their family members can continue to enter, live and work in the U.K. visa-free. EU nationals either already living in the U.K. or arriving before Dec.31, 2020 should apply for “settled status” or “pre-settled status” in order to document their right to reside in the U.K. beyond this transition period. The Statement of Intent sets out the framework for EU nationals (and likely EEA and Swiss nationals) to register their legal right to reside in the U.K. under the terms of the Withdrawal Agreement, either as permanent residents or in a temporary status that will allow them to become permanent residents after five continuous years in the U.K.

Summary of EU Settlement Scheme:

  • Irish nationals. Irish nationals are automatically considered settled in the U.K. and may continue to live and work in the U.K. freely on the basis of their Irish passport alone after Brexit. They are exempt from needing to apply for settled status under this EU Settlement Scheme.
  • Iceland, Liechtenstein, Norway (European Economic Area nationals) and Switzerland. Although the Withdrawal Agreement does not expressly cover these countries, the U.K. expects to shortly reach an agreement with the four countries and apply the EU Settlement Scheme to their nationals on an equivalent basis.
  • Implementation dates. A pilot program of the EU Settlement Scheme is expected in Autumn 2018. The scheme will be fully open for applications by March 30, 2019 (the day after Brexit).
  • Time frame. EU nationals and their family members will retain the same rights to work, study and access public benefits that they currently enjoy under EU law until the end of the transition period, i.e. until Dec. 31, 2020.
  • Eligibility.
    • EU nationals and their family members who have been continuously resident in the U.K. for five years as of Dec. 31, 2020 can be registered with “settled status.”
    • EU nationals and their family members who arrive in the U.K. before Dec. 31, 2020 but who will not have accrued five years of continuous residence at that date can be registered with “pre-settled status.” This temporary status will enable them to stay in the U.K. until they accrue the five years of continuous residence to be eligible for settled status.
    • Close family members (spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will still be able to join an EU national resident in the U.K. after Dec. 31, 2020, if the relationship existed as of that date and continues to exist when the person wishes to come to the U.K. Future children are also protected. They would be granted either “settled status” or “pre-settled status” in line with the EU national.
  • Deadlines. The deadline to apply for settled or pre-settled status will be June 30, 2021, giving EU citizens approximately six months from the end of the transition period to register their status. Close family members joining an EU national after Dec. 31, 2020 will have three months from their arrival to apply for settled status under the scheme (or until June 30, 2021 if they arrive before April 1, 2021).
  • Procedures.
    Applications will be filed online or through a mobile app (to be launched) to reduce paperwork. Applicants will need to verify their:

    • Nationality and identity, e.g., upload a biometric passport.
    • Period of residency in the U.K. This should be automated using government tax and pension records, and applicants may upload additional supporting documents if needed to fill in gaps. (They will not need to document that they have been working, studying or held Comprehensive Health Insurance as currently required for permanent residence applications.)
    • Criminal records check.
  • Family members will need to document their nationality and identity (passport), relationship (e.g. marriage or birth certificate), and residence in the U.K.
  • Those who already hold indefinite leave to remain or permanent residence documents can exchange these –subject to criminal record and government tax record checks to ensure their residency has not lapsed.
  • Government fees. An application will cost £65 per person (£32.50 for children under 16), but is free for those who were previously issued a permanent residence or indefinite leave to remain document. Those who apply for pre-settled status will not have to pay the fee again when applying for settled status.

BAL Analysis: Generating documentation for 3.5 million migrants is a gargantuan administrative task and will depend on the Home Office utilizing the latest technology for online applications as well as applying a “light touch” in terms of documentary evidence. While the commitment to allow EU nationals to remain in the U.K. was made clear by the Withdrawal Agreement, the Statement of Intent provides procedural details on the timing and steps for EU nationals to secure this new documentation.

Although EU nationals and their employers do not need to take any steps immediately, they should be aware of the expected deadlines and prepare to apply when the EU Settlement Scheme is launched in Autumn 2018. EU nationals should be aware that this is a mandatory registration scheme and is not optional (unlikely previous EU/EEA registration schemes)—the right of EU citizens to remain in the U.K. post-Brexit is not automatic and those who do not apply within the published deadlines will become undocumented with no legal right to live and work in the U.K.

EU nationals should weigh various considerations as to the timing of their registration depending on their individual circumstances. BAL has produced a Brexit decision tree to help employers identify different EU migrant groups based on date of entry to the U.K. and support their registration under the post-Brexit settlement scheme.

This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.

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