Brexit: What do I have to do from 29 March 2019?
EU nationals and their family members may well be dismayed by the recent accusations of ‘queue jumping’ widely reported, and the dismal reality of Brexit negotiations.
While the UK may still be on some kind of track to leave the EU on 29 March 2019, all is not yet decided. However, there are options for EEA nationals who wish to remain in the UK to ensure that they are able to do so.
EU law will continue to apply in the UK until 31 December 2020 – this will be a transitional period in which individuals can choose whether to make applications under EU law, or under under the Immigration Rules’ newest appendix – Appendix EU.
29 March 2019 – 31 December 2020
Permanent Residence applications can be made now, and until 2020. In order to acquire the right of permanent residence, an EEA national or their family member must have exercised Treaty rights in the UK for a continuous period of five years (or rely on a shorter period in accordance with the exceptions under the Regulations). Continuity is broken by absence of six months in one year, or an absence of 12 months for some important reason. This status is lost after continuous absence for two years or more.
It is projected that this will be able to be ‘upgraded’ to settled status under the new Appendix with no application fee and minimal documentation required ahead of the deadline of 30 June 2021.
For persons with less than five years’ exercise of Treaty rights in the UK, there will be other options under the new Appendix.
After Appendix EU comes into force generally, there will be an option for individuals who have not lived in the UK for five years to apply for pre-settled status, which will be a grant of limited leave under the Immigration Rules. This will require identity to be proven, as well as the relationship with an EEA national if the application is by a family member, and that there are no suitability reasons to refuse the application.
Interestingly, it is residence, rather than Treaty rights, which is key to a successful application. This may offer opportunities for those who have struggled to acquire Residence Cards or Registration Certificates to acquire a recognised status in the UK and secure their position.
The definition of ‘family member’ is similar to that in the EEA Regulations, apart from in relation to ascending line relatives, who no longer have to show that they are dependent upon an EEA national. As such, it seems that dependency of parents and grandparents is to be assumed, making their applications more straightforward.
After Appendix EU comes into force, ‘settled status’ will be indefinite leave to remain for EU nationals and their family members. Applications for settled status require someone to show that they have resided in the UK for five continuous years as an EEA national or their family member, and that there are no suitability reasons to refuse the application. As in permanent residence applications, continuity of residence is broken by absence of six months in one year, or an absence of 12 months for an important reason.
As a grant of ILR, this application will be granted from the day it is decided, which will mean that any adult looking to apply for citizenship may wish to consider applying under the EU Regulations if possible, as this will come with the ‘deemed date’ of acquisition of permanent residence.
Settled status is only lost through five years’ continuous absence from the UK, more generous than the two years permitted in other categories.
31 December 2020 – 30 June 2021
After EU law ceases to apply, it will become essential for EEA nationals and family members to make immigration applications. 31 December 2020 – 30 June 2021 is a period in which it will become essential to make an application under Appendix EU or ‘upgrade’ any EEA documentation to leave under the Rules if this has not already been done. While it is unclear how the deadline of 30 June 2021 will be enforced, at present it is sensible to treat it as a firm deadline and ensure compliance with it.
There are likely to be advantages, in terms of legal certainty and for personal security, for EEA nationals and their family members to make applications as soon as possible, ahead of any restrictions thrust upon employers or otherwise.
Contact Our EEA Immigration Barristers
If you are an EEA national or the family member of an EEA national and you would like expert advice in relation to your rights of residence following Brexit, contact our specialist EEA immigration barristers in London on 0203 617 9173 or complete our enquiry form below.