On 21 June 2018, the Home Office published a Statement of Intent, which gives more details regarding the status of EU nationals and their family members following the Brexit referendum. The Statement of Intent is not yet law, but it is unlikely things will change significantly between now and then.

From later this year, EU citizens and their family members living in the UK will be able to start applying for UK immigration status through the new EU Settlement Scheme.

Who can apply under the Scheme?

EU nationals and their family members who arrived in the UK before 31 December 2020 will be protected and allowed to continue living in the UK, working, accessing public funds, healthcare and pension, as they are currently entitled to.

Family members of EU nationals who are living overseas on 31 December 2020, but where the relationship existed before 31 December 2020, will be allowed to join their EU citizen resident in the UK even after 31 December 2020. Children born after 31 December 2020 of EU citizens living in the UK before then will also be protected.

The rights of citizens of Norway, Iceland, Liechtenstein and Switzerland are currently being negotiated, but the British government’s intention is that the settlement scheme will be open to them too.

Irish nationals will not need to apply under the new Scheme. Their non-Irish family members will need to.

How will I apply and what will the Home Office check for status to be granted?

The application will be made online, although the Home Office is looking at whether some applicants should be allowed to apply by completing a paper form. The government will also provide an assisted digital service for those who need support to make an online application.

The Home Office will check three things:

1. Proof of identity

Applicants will need to provide evidence of their identity, which they can do by submitting their passport details or, for EU citizens, their national ID, via an app. Those who do not have a biometric identity document will not be able to use the app, and will need to send the original document via post. This will be returned to them as soon as possible.

Applicants will also need to provide a passport-size photograph. EU nationals can upload it online. Non-EU nationals who have a biometric Residence Permit issued under current EU law will also be able to upload their photo online. Other non-EU nationals will need to attend an application centre to give their fingerprints and a photograph.

2. Confirmation of residence in the UK

Applicants will need to have been living in the UK before 31 December 2020. Applicants will not initially be asked to submit evidence of residence, and the Home Office will carry out their own checks through HMRC and DWP. Where HMRC and DWP do not hold evidence confirming the applicant’s residence, then applicants will have an opportunity to upload, online, evidence of residence, such as bank statements, letters from employers, P60s etc. A full list of suggested evidence will be published by the Home Office when the scheme is in force. A draft version of this list was included in the Statement of Intent as Annex A.

3. Criminality

Applicants will need to self-declare their criminal convictions. The Home Office will also carry out their own checks. Serious criminal convictions might lead to a refusal.

Family members will also need to show that they are related to the EU national.

How much will it cost?

Subject to approval by Parliament, the application will cost:

• £32.50 for children under the age of 16
• £0 for
  • those who already have valid indefinite leave to remain, and have not been absent for two consecutive years since obtaining it
  • those who already have a document certifying permanent residence, and have not been absent for more than five consecutive years or lost their right because a deportation order was made against them
  • those who have been granted pre-settled status and are applying for settled status after April 2019
  • children in local authority care
• £65 for all other applicants

What will I be given?

Generally, EU nationals and their family members who have lived in the UK for 5 years will be given settled status. There are some categories of people who can qualify for settled status before 5 years, including, provided certain conditions are met, those who have had to stop working due to retirement or incapacity, or the family members of deceased EU nationals.

Children of EU nationals who have been granted settled status will also be given settled status, even if they have not themselves lived in the UK for 5 years.

Those who have not yet lived in the UK for 5 years will be granted pre-settled status for a period of 5 years. Once they have reached 5 years residence, they will be able to switch to settled status.

If you are an EU national, your new status will be issued in digital format only. You will not be issued with a physical document.

If you are a non-EU national, and do not have a Biometric Residence Permit, then you will be issued with one.

When can I apply?

The new system is expected to start later this year, and will be fully open from 30 March 2019.

You will need to submit an application no later than 30 June 2021. If you apply after this date, you will become an overstayer.

How long will it take?

Although exact timeframes have not been published, the Home Office suggested that most applications should be decided in “a few days”. Less straightforward ones might take longer. In the future, the Home Office intends to publish current waiting times so that people will have an idea of how long the wait will be.

If you have questions about your rights, or would like to book an initial consultation for tailored, individual advice, please do not hesitate to contact us.

Those of you who follow our Twitter account will be aware that, over the past few weeks, we have been soliciting comments from other practitioners as to whether they, like us, have been experiencing difficulties in accessing accurate and full information about the varying procedures applicable with respect to entry clearance applications at different Visa Applications Centres (VACs) around the world. The Immigration Law Practitioners Association (ILPA) also encouraged our initiative and circulated our survey to its members.  We also put out our request for feedback on this issue from members of the Refugee Legal Group (RLG).

We are very grateful to the 75 organisations and individuals responding to our survey and would now like to share with you the results of that survey.  As you will see from the report most respondents expressed views consistent with our experience that, at present, it is indeed difficult to obtain accurate information regarding the varying procedures being implemented.

The report includes concrete examples and, further, makes suggestions for improvement.

We were very grateful to be included yesterday by ILPA in a meeting which they had arranged between ILPA representatives and senior UKVI officials with special responsibilities for entry clearance procedures.  The report had been circulated beforehand to participants in the meeting and we were further given the opportunity to present some background regarding our motivations and methodology in preparing the report at the meeting.

It was encouraging that, in reacting to the report, the representatives of UKVI acknowledged that the kinds of problems outlined in the report are in fact happening at present.  They stressed, however, that the entry clearance section of UKVI is in the middle of a transition period which is likely to continue until the end of this calendar year.

In particular, they are working towards a more uniform system of decision making, based largely in Sheffield, which will be working from scanned copies of original documentation.  They pointed out that, at present, even original documentation being sent to Sheffield directly by applicants and their representatives is being scanned prior to the consideration of applications and that they continue to receive scanned documentation from a large number of entry clearance posts.  They also have the ambition, in due course, to reduce the amount of original documentation which needs to be submitted for at least some applications by creating more direct links to obtain relevant information held by HMRC, applicants’ banks and their employers.

They indicated that, in the meantime, they would hope to address the issues raised in our report by seeking to ensure that reliable information is contained about the entry clearance procedures of different VACs on the gov.uk website.  You will see that this was in fact a major recommendation of our report.  They indicated that, according to their own policy, this website should be the definitive repository of information about entry clearance procedures and not the websites of individual VACs.  They also made clear the individual VACs ought not to be setting their own unique individual procedural requirements (e.g., about the number of pages which may be scanned in an individual application) but that such policy decisions are a matter for UKVI.

They suggested that the collection of information about individual VACs’ procedures on the gov.uk website would not happen immediately but should be seen as the ‘medium term solution’ to be carried out once they felt that they had negotiated the challenges they are facing in their current transition period.

They also indicated that, in their view, a ‘longer term solution’ to the problems raised would be the fact that, in due course, they are aiming to prescribe clearer and more consistent procedures throughout the system so that the procedures to be followed will be more consistent at all entry clearance posts.

You should also be aware that we have also provided to the UKVI officials a comprehensive list of all the problems and issues you raised with respect to particular entry clearance posts.  They indicated that, where it seemed appropriate, they would be raising with the individual entry clearance posts problems which have been identified.

We are very grateful to everyone who participated in the survey which we conducted.  This made it possible for us to prepare a much more convincing and authoritative report which, we hope, may have some small impact in effectuating positive change in the system.

On Monday 21 May, we will once again be taking part in the London Legal Support Trust’s annual 10km Legal Walk, raising money for legal advice charities.

The advice centres supported by the Walk help people including families facing homelessness, older people requiring community care, trafficked women and children, people with disabilities, refugees, people who are facing employment problems and those with mental health issues.

The need for these charities has grown in recent years because of significant cuts to legal aid. The funds we raise are therefore more important than ever.

We ask those who can to support our team and help to improve access to justice by donating online.

 

On Saturday 19 May, we will be running a free advice session for Europeans and their family members at the Waterloo Action Centre.

The aim of the event is to give an overview of the rights of European nationals in the UK and to outline steps they may wish to take to prepare for Brexit.

We hope that those attending will come away with the knowledge and confidence to make an application if they need to.

In preparation for the meeting, we have prepared a self-help guide for those looking to understand their current rights and how these might be affected by the UK’s exit from the EU. The guide also includes information and guidance about how to make a successful application.

You can download the guide by clicking here.

There are a limited number of spaces still available to attend the event itself. We ask that those wishing to attend the meeting register their interest via Eventbrite.

We have been reading with interest today’s news that the government might be seeking to abolish civil partnerships altogether in order to ensure that opposite-sex couples, who cannot presently enter into a civil partnership, are not discriminated against when compared with same-sex couples, who can enter into civil partnerships. This follows a challenge by an opposite-sex couple to the current civil partnership rules which is before the Supreme Court this week.

History, it seems, tends to repeat itself. Back in the 1990s, while it was possible for certain opposite-sex partners of British nationals to obtain leave to remain based upon their unmarried relationship, it was not possible for same-sex partners to do so. Wesley Gryk, our senior partner, assisted a gay couple to challenge this discriminatory situation in a case before the then Immigration Appeal Tribunal (nowadays the Upper Tribunal (Immigration and Asylum Chamber)) called Lizarzaburu v Secretary of State for the Home Department 19 April 1994 (unreported). The Tribunal urged the Home Office to extend the unmarried partners concession to same-sex relationships.

In its wisdom, on 22 February 1996, the Home Office decided to withdraw the unmarried partners concession altogether, thereby maintaining “equality” by preventing both gay and straight couples from benefiting from the provision. Everyone was equally shut out from this route until the following year when the concession was restored following tireless campaigning by the Stonewall Immigration Group (now the UK Lesbian and Gay Immigration Group).

Wesley is writing a detailed account of the history of the battle for equality in immigration law during the 1990s to be published later this month which in fact is the 25^th anniversary of the first meeting of the Stonewall Immigration Group. For now, though, we think that the most important lesson the government should take from this “mirror image” situation of that prevailing in the 1990s is that the best way to promote equality is not to restrict the choices we have in life but rather to extend them as widely as possible. The only hint of progress one can perhaps deduce from the present situation is that, this time around, gay men, lesbians and bisexual people find themselves with more rights than their straight counterparts, which rights are now under threat, a situation which would have been unthinkable 25 years ago.