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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.

Those who have lived in the UK for less than five years by 31st December 2020, when they apply, will be given 'pre-settled status' which can be converted to settled status at the five year point - note pre-settled status does not grant entitlement to benefits. Scroll down for the section on pre-settled status.

What if an EEA national doesn't apply for settled status by the deadline?

Failure to apply could mean ending up with no right, not only to claim benefits, but to live or work in the UK. 
How to apply on this page (second section).

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 states that the rights of someone with settled status will allow them the same rights to benefits as a British Citizen.  Note that 'settled status' is also called "indefinite leave to remain" in the documents.

BUT NOTE: Those with pre-settled status can NOT claim benefits on the basis of this status alone. Although it is referred to as 'limited leave to remain', benefit* regulations were amended on 16th April 2019 to state that pre-settled status does not give the sort of right to reside that means the person is habitually resident. 
So they will need to acquire an alternative right to reside.
(This applies to Universal Credit, Pension Credit, Housing Benefit, Income Support, JSA and ESA.)

Who can apply for Settled Status?

  • EEA nationals with "permanent residence status" (in which case they will not need to prove anything else- it will be automatic).

  • 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.

  • family member of an EEA national whose only relationship to an EEA national is as an unmarried partner, MUST have a residence card in order to apply for settled or pre-settled status. They need to apply on Form EEA (EFM) - link to gov.uk site here.

  • The deadline to apply is 30th June 2021, or if it's a "no deal" Brexit - then 31st December 2020.

Originally it was stated that non EU nationals whose only right to reside is a derivative right (eg through being the primary carer of a child in education) would not be able to apply for 'settled status' under the EEA Settlement Scheme but this has been changed by the
Statement of Changes to the Immigration Rules (published March 7th 2019) -
 -however they will have to make applications on paper forms. 
Go to "What should an EEA national do now" page for more info.


When can people start applying for settled status?

Everyone has been eligible to apply from 30th March 2019. (From 21st January 2019 everyone who had a valid biometric passport / identity card was able to apply).
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 ran until December 21st 2018. 


How do people apply for settled status?

Applications will generally be online (using an app on an Android phone then an online claim form) although the government has said there will be an alternative for those unable to access online, plus an assisted digital support scheme. Note it was "app only" until 30th March 2019. More on this page.


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 EU 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. Definitions of "suitability" (or otherwise) in this guidance for caseworkers.


Cost 

There is no charge but until 30th March 2019 applicants had to pay upfront - £32.50 for children under the age of 16 - but nothing for children in care; £65 for each adult - and apply for a refund after that date. 


Deadlines

There is a risk that EU nationals might fail to apply for “settled status” by the deadline - currently: 30th June 2021 (or 31st December 2020 if it's a "no deal" Brexit), 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. Their status can be confirmed online through the Home Office online checking service: ‘View and Prove your Rights in the UK’. 
Also, any non EU national family member of an EU national who is given settled status will also be issued with a Biometric Residence Document 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. The review can be applied for
online.
 
If the review fails, applications made after 30 March 2019 will 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.

However if it is refused on “suitability grounds” (eg criminality),  they would have to use judicial review - a lengthy and expensive process.

Can settled status be lost?

Settled status will be lost if they are out of the UK for more than five years; or if they only have pre-settled status, out of the UK for more than 3 years.

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  the limitation of "no recourse to public funds" which affects some people subject to immigration control with "limited leave",  does not apply to people with pre-settled status. 

  • But NOTE pre-settled status does NOT grant entitlement to Universal Credit. Amended reg 9 of UC regs 2013. They will need to acquire some other form of right to reside.

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

  • family member of an EEA national whose only relationship to an EEA national is as an unmarried partner, MUST have a residence card in order to apply for  pre-settled status. They need to apply on Form EEA (EFM) - link to gov.uk site here.

  • There is now no charge to apply. (Though before 30th March 2019 people have to pay £65 upfront and claim it back after that date.)
What if there is "No Deal"?
There will probably be a more restrictive version of the EU Settlement Scheme if there is "no deal".

The government published a  contingency plan on 06 December 2018 in the eventuality of no Brexit deal. The EU Settlement Scheme would still exist but be less generous in that:
● it will only apply to those EEA nationals in the UK before Brexit day.
● the deadline for settled status applications would be 31st December 2020
● there would be no right of appeal, the only remedies being internal administrative review or judicial review 
● it would be easier to deport people convicted of minor crimes after brexit day.
● it would be more difficult for non-EEA family members to join their EEA nationals in the UK. The deadline where the family relationship was established pre Brexit would be 29th March 2022; but where the relationship was established post Brexit it would be 31st December 2020. 
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