On 7 November 2017, the UK government provided the European Commission with a ‘technical document’ with the aim of further clarifying its proposals in respect of post-Brexit citizenship rights. The note aims to offer reassurance to EU citizens and their family members by setting out further details of how a new ‘settled status’ scheme will operate in practice.
Amongst other clarifications, the document says that those EU nationals applying to stay in the UK after Britain leaves the EU will not have their applications refused because of minor technicalities and caseworkers considering applications will exercise discretion where appropriate. The aim is to create a ‘user-friendly’ system.
The route for individuals to apply for settled status (permanent residence) will be by application to the UK authorities, made within a specified period of time after exit from the EU (likely to be within a two year implementation period).
Obtaining settled status will be a condition for continued lawful residence in the UK. Such status will be guaranteed under the terms of Britain’s Withdrawal Agreement. The status document will enable qualifying EU citizens to prove their rights and status to employers, public service providers and local authorities.
Streamlined application system
The government proposes to introduce a new application system ‘from scratch’ with new processes, technology, rules and support for applicants. The aim is to design a process with ‘users in mind’. The government aims to engage with users ‘every step of the way’. It is clear that the government wishes to allay concerns that a new system will be overly bureaucratic, costly and time-consuming.
Those currently resident in the UK will be given sufficient time after Brexit to make an application. The government also proposes to establish an early agreement with the EU on these issues in order to set up a voluntary application process before Britain leaves the EU so that those who wish to do so can get their new status at the earliest convenience. This would enable applications to be spread over time, thereby alleviating a sudden spike in applications that would cause strain on resources.
The UK government estimates that the period made available for individuals to make an application after exit will last for around two years. This is in line with existing proposals for an implementation period.
The intention is to develop a new application system which draws on existing government data, including employment records held by HMRC for supporting evidence. It remains to be seen whether such efficient communication between government departments can be delivered in practice.
The fee for applying for this new settled status will not exceed the cost of a British passport (currently £72.50). The government is therefore keen to emphasise that this will be an administrative cost, in line with those applicable to British citizens, and there is no intention to penalise EU citizens financially.
For those who already hold a valid EEA permanent residence document, there will be a ‘simple process’ to exchange this for a settled status document, subject to ID verification and submission of a photograph, a security check and confirmation of ongoing residence. It will be interesting to see how the Home Office proposes to combine data integrity and security with simplicity of process and convenience.
Travel during the implementation period
The government states that people will continue to be able to come and live and work in the UK during the implementation period after the UK leaves the EU, and there will be a registration system. It seems likely that EU citizens will continue to benefit from freedom of entry at the ports in line with pre-Brexit admission processes.
Criteria for granting settled status
The government indicates that the criteria applied will be simple, transparent and in accordance with the Withdrawal Agreement. EU citizens and their family members who can evidence to the UK authorities that they fall within the scope of the Withdrawal Agreement (ie are lawfully resident before the specified date) must be granted status by the UK authorities unless one of the grounds for refusal permitted by the Withdrawal Agreement is met.
The UK has already agreed that the conditions for EU citizens acquiring permanent residence under the agreement will be as per the existing EU Directive (five years of continuous and lawful residence as a worker, self-employed person, student, self-sufficient person, or family member thereof).
The UK proposes a pragmatic approach ‘including, for example, not checking that comprehensive sickness insurance has been held by those who are not economically active or are studying, or applying a genuine and effective work test.’ This takes away one of the most common complicating features for applicants in those categories.
Applicants who are not able to evidence five years’ continuous residence, but who can evidence that they were resident before the specified date, will be given temporary status. This will enable them to remain in the UK until they have built up five years’ continuous residence, allowing them to apply for settled status at the conclusion of the five-year period.
Caseworkers will give applicants the opportunity to furnish supplementary evidence or remedy any deficiencies where it appears a simple omission has taken place, avoiding rejections based on technicalities.
Review and appeal
The Government aims to establish an administrative review mechanism to quickly resolve any case working errors. Beyond this, applicants will have recourse to an independent judicial authority (as yet unspecified). This means that EU citizens and their direct family members will have recourse to a statutory right of appeal, allowing the UK courts to examine the legality of the UK authority’s decision to refuse or revoke status.
Out of time applications
The government will retain the discretion to consider applications submitted after the deadline if the delay was for a ‘good reason’.
Any EU citizen whose application under the Withdrawal Agreement is refused as out of scope will be in the UK unlawfully and will be required to apply to remain under successor immigration arrangements or leave the country.
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