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FAQs for Employers – EU citizens and future EU migration*

The UK’s exit from the EU

1. When does the UK leave the European Union (EU)?

The current date is set for 31st October 2019, (BREXIT).

2. Has the UK announced what it intends to do to support EU citizens already in the UK after BREXIT?

Yes, and a settlement scheme has been launched which will give EU citizens a new status called settled status. The settlement scheme will continue whatever the outcome of the discussions between the UK and EU.

3. How long will EU citizens in the UK have to gain this new status?

EU citizens who reside in the UK before BREXIT have until the end of December 2020 to apply for a new immigration status. The new status can only be obtained after making an application, and is not given as of right.

3a. So are all EU citizens guaranteed this new immigration status?

No – the status is subject to making a successful application. Each EU citizen needs to make an application individually, but there are very few EU citizens who have been refused so far after making an application. To gain the new permanent status EU citizens need to have resided in the UK for five years.

Those with less than five years residence will gain pre-settled status. This lasts for five years, allowing the person to exchange this for settled status later on. The rights of the EU citizen are the broadly the same for settled status and pre-settled status. Those with pre-settled status may have a reduced entitlement to some benefits. 

 

The new settlement scheme and what it means for the rights of EU citizens and their families.

5.Does the settlement scheme  mean that my EU employees who are already working in my business will be able to stay and work in the UK once the UK leaves the EU ?

In short, yes. Settled status will allow EU citizens already residing in the UK before BREXIT to stay after the UK leaves the EU. Settled status is a permanent status lasting indefinitely and confers broadly the same set of rights EU citizens currently enjoy – to work in the UK, to use the NHS, to study, to access benefits and pensions and travel in and out of the UK. 

6.Does the same scheme also cover EU citizens’, their families and dependents?

Yes it does. Any family members and dependents who are EU citizens themselves, and already in the UK before BREXIT will need to apply in their own right.

7.What about family members and dependents who arrive after BREXIT? 

EU citizens who are already in the UK before BREXIT can be joined by existing close family members who arrive in the UK after BREXIT until 31st December 2022. The EU citizen already in the UK does not need to have settled or pre-settled status first.

8.What is meant by existing close family members?

Existing means that the relationship existed at the time of BREXIT, (and was still in existence when they apply), for example in the case of spouses, the marriage took place before BREXIT. Close family members mean children under the age of 18, spouses and partners and children under the age of 18 of spouses and partners.

9.What about future family members – where the relationship was established after BREXIT?

EU citizens who already have settled status, or pre-settled status, can be joined in the UK by existing close family members until 29th March 2022.

10.Is there a date when this part of the scheme will close?

Yes, all of the family re-union part of the scheme closes by 29th March 2022. After this, family members and dependents will need to apply under the new UK immigration system.

11)What are future children who are born to EU citizens in the UK before BREXIT?

If the EU citizen already has settled status, then any children born in the UK whilst the EU citizen (the parent) is living in the UK, will automatically be entitled to British citizenship. 

If the EU citizen has pre-settled status, then any children born in the UK will automatically be eligible for pre-settled status. They will only qualify for British citizenship through their other parent. 

12. Does the settlement scheme cover all EU citizens?

Yes it does, however, citizens of the Republic of Ireland are already covered by a separate agreement with the UK. This scheme treats Irish citizens for most purposes the same as UK citizens, and the UK has signalled its intention to carry this agreement forward after Brexit. Irish nationals then will need to do nothing differently and will not need to gain settled status in the UK, however, family members of Irish nationals who are not UK or Irish citizens will need to apply for settled status. EU citizens who hold a UK passport will not need to do anything more. 

The scheme has been extended to cover citizens of the non-EU European Economic Area states (Iceland, Liechtenstein and Norway and Switzerland).

13.What other criteria will EU citizens need to meet to apply for settled status?

The basic criteria for settled status and pre-settled status are:

  • proof of identity, 
  • eligibility (residence in the UK) 
  • and suitability (consisting of a criminality/security check).

 

Family members and dependents

14. What do you mean by close family members and dependents?

See question 8 above, noting that children are those under the age of 18, include step-children and adopted children.

Family members and dependents, as described above, do not need to be EU citizens and can be from any country.

 

Settled status

15.Can any EU citizen already in the UK before BREXIT apply for settled status?  

Yes, the person just needs to be an EU citizen, resident in the UK for more than 5 years who is not a serious or persistent offender, (see question 18 further for continuous and lawful residence). “Residence” means the place where an individually normally lives with a settled purpose, and so this could mean working, studying or running a business in the UK. 

EU nationals who are be a resident in the UK for less than five years at the time of their application will be granted pre-settled status lasting five years. Once they have remained in the UK for five years, they will they be able to gain their settled status by making a further application.  Pre-settled status will allow the holder to carry on with their life, living/working/studying and provide access services, such as health, education and social security.

16. What does it mean by residence?

To reside in the UK means to be living in the UK on a lawful, voluntary and properly settled basis for the time being.

17. What does settled status entitle EU citizens to?

Settled status will provide EU citizens with much of the same entitlements which they currently enjoy under EU law, so the right to have their close family members join them (see above, question 6 onwards), access to healthcare and social security and the rights to work and start a business. Pre-settled status entitles the holder to a more restricted range of benefits than for settled status.

18. What is the holder of settled status, or pre-settled status changes their passport or national ID card?

If there is change of passport or ID card number then this the new passport will need to be provided to the Home Office.

19. With settled status, will EU citizens be able to live in the UK, access public funds and services and apply for British citizenship?

Yes, EU citizens could in time apply for UK citizenship and for some there could be some advantage in doing so, but they should think carefully and take advice. Not all EU member states allow their citizens to hold citizenship of another country (called dual nationality) and losing the citizenship of an EU member state may affect pension and social security entitlements there and the ability to move freely around the EU. 

20. Can settled status be revoked or lost at any point in the future?

Yes.  Settled status can be lost if the holder is absent from the UK for five continuous years. This is likely to mean that returning to the UK, even for one day, during a five year period of absence, will mean that the individual will not lose their settled status.

21. What are the definitions for “continuously” and “lawfully”?

To obtain settled status the EU citizen must have been continuously and lawfully resident in the UK for five years, (see question 14 above). Continuous does not have to mean without any breaks, so the person concerned could leave the UK for some periods and then return without being regarded as losing continuity of UK residence. 

Periods of up to six months outside the UK in any rolling period of 12 months will not break a period of continuous residence, and there is no restriction on the number of times the person leaves and returns to the UK, only that the total period does not exceed six months.

The reason of the absence does not matter either and so periods of absence for work, holidays or family visits will all count towards the total permitted six months in any 12 months. Note that this is not the calendar year, simply any 12 month period of time.

The person can, in addition, also be outside the UK for one period in five years of up to 12 months for an important reason such as pregnancy, childbirth, serious illness, study, vocational training, military service or posting for work.  Only one such period in any five years is permissible and again, the absence is calculated over a rolling 12 month period.

However, once an EU citizen has accumulated a period of 5 years UK residence then the period of time that they can be outside he UK changes. After 5 years of UK residence, the person can then be absent from the UK for up to 5 years without losing their status as a UK resident.

Those with pre-settled status should be able to be absent from the UK for up to 2 years, but this is yet to be confirmed. 

22. What about those EU citizens who arrive before BREXIT but haven’t been living in the UK continuously and lawfully for five years by the end of the transitional period?

See question 4 above. In all cases, EU citizens resident in the UK before BREXIT but with less than five years continuous residence will be granted five years pre-settled status. This 5 years period is fixed, and everyone with pre-settled status will have 5 years.

This time will then allow the person to continue to live in the UK, on broadly the same terms as now. Once they have resided in the UK for 5 years, they will then need to make a further application and can then gain their settled status.

23. Will family members be able to apply for settled status?

See questions 6, 7, 8 and 9 above. A family member who is an EU citizen in the UK before BREXIT should apply for settled status in their own right. There may be some difference in the position of family members depending on when they entered the UK, (see answers to the questions referred to above).

but generally all family members will have to apply individually for settled status, so a parent could not make a global application for themselves, their partner and all their family members.

Settled status is individual and generally each person needs to apply for it separately but there will be some exceptions to some of the rules, for example, children under the age of 21 of an EU citizen with settled status will not need five years residence to apply. 

24. What about family members and dependents of an EU citizen in the UK who are not themselves EU citizens – if the family member is also residing in the UK before BREXIT can they also apply for settled status?

Family members of EU citizens, who reside in the UK before BREXIT, can also apply for settled status. They do not need to be EU citizens themselves.  The following can apply under the scheme –

i. A family member of an EU/EEA/Swiss citizen resident (“the above”)in the UK before BREXIT,
ii. A family member of the above who lived in the UK and then took British citizenship,
iii. Spouses, civil partners and unmarried partners of the above resident in the UK
iv. Children, grandchildren and great-grandchildren of the above who are under 21 years old.
v. Dependent relatives of the above.]

25. Could the Home Office decide to reject an application for settled status? 

There are very limited reasons why an application for settled status would be rejected. These are likely to be that the person fails an identity check, (for example, they have used a false identity), or they fail the criminal record and security check or they are not resident in the UK.

26. How long will an EU citizen have to apply for settled status?

EU citizens residing in the UK before BREXIT will have until the end of December 2020 to submit their application for settled status or as the case may be pre-settled status. They do not need to have acquired five years’ residence in the UK by the end of December 2020merely submit an application.

27. What will be the impact on EU citizens who do not, by the end of December 2020 do anything?

Then they are likely to find themselves unable to prove that they have a right to work and access public services in the UK and prevented from accessing public services, such as social security. 

28. How much will it cost to apply for settled status, and what about those applying for permission to remain?

There is no fee to apply. 

29. What if someone already has an EU permanent residence document?

There will be a streamlined process to apply for settled status and as stated above, but the person will still need to apply for settled status. 

30. Is the application system  online or via hard copy?

The system is digital by default, with hard-copy available if needed. Most are expected to apply electronically. 

31. As part of the process of applying for settled status, or permission to remain, what does the applicant need?

If the applicant intends to submit their application electronically then they will need access to the internet via a computer, tablet or smartphone. 

To establish their identity they will need a valid, current passport or EU identity card and a recent photograph of themselves or the ability to take one using a smartphone or camera. If they have one, they may also use their national insurance number which the UK government will then use to establish the time spent living in the UK.

The applicant also has the option of submitting other proof of residence in the UK such as such as P60s bank statements or utility bills. 

32. How is proof of residence in the UK need to be established?

The applicant will be asked during the process for their UK national insurance (NI) number, but there is no obligation to provide it. If the NI number is provided, then a check will be made on the UK’s tax and benefits systems held by HMRC and the DWP and these records will be used as the default evidence of continuous residence in the UK.

There will, in addition to these records, be the option to submit further evidence if these records prove to be incomplete. 

If no national insurance number is provided then the applicant will need to submit evidence showing their continuous residence in the UK. The types of evidence are specified in guidance but include bank statements, business accounts, letters from employers or universities, mortgage statements and residential leases.

33. How does the criminal record check work?

The person applying for settled status will need to declare their criminal record. This will then be checked and verified. The only criminal records which are likely to prevent settled status are the more serious ones, so speeding tickets and motoring offences are very unlikely to be a barriers to achieving settled status.

34. How does the identity check work?

There will be two ways to confirm identity. The first is via an app that will work on some smartphones. The app will read the electronic chip in the passport, and this data will be used to confirm the identity of the applicant, together with a photograph of themselves that they will need to take and upload. If the applicant does not wish to or cannot use the app then there is a manual checking service available.

35. How absences from the UK are be dealt with?

Again, these will need to be declared by the applicant for settled status as part of the application process, and may be subject to a check.

36. Is the application process live?

Yes. There were pilot schemes run last year and the system went live in March 2019.

37. What about the citizens of other countries in Europe – do the new arrangements cover them as well?

Broadly, yes. The UK has announced that citizens of the EU, the EEA, (Iceland, Norway, Liechtenstein) and Switzerland can all apply under the settlement scheme. Other countries in Europe, such as Albania, are not covered by the scheme. 

 
Rights of EU citizens and their family members

38. Will the rights of EU citizens who have settled status or pre-settled status be enforceable in UK law?

Yes. The scheme is backed up by legally enforceable rights.

39. What rights will EU citizens under the scheme have – what about pensions, social security and childcare?

EU citizens with settled status or pre-settled status, and EU citizens who reside in the UK before Brexit and apply before the end of December 2020, will have the same rights that they have now – the same UK pension’s entitlements, the same rights to UK social security payments including child benefit and the same rights to childcare support. It is unlikely that an EU citizen arriving after Brexit will in the long term have the exact same rights and over time this is likely to change.

40. What rights will EU citizens have until 31st December 2020 if they don’t apply for settled status/permission to remain?

Provided that the EU citizen resides in the UK before Brexit, then they have until 31st December 2020 to apply under the scheme. Until this time, their current rights in the UK as EU citizens are protected.

41. Can family members or dependents join EU citizens who reside in the UK before Brexit join them after Brexit?

See questions 6, 7 8 and 9 above.

42. Will there be any other differences in the treatment of EU citizens’ families and dependents, depending on when they arrive in the UK? 

Yes, as the answer to the above makes clear. After the end of December 2020, the UK will implement a new immigration system and arrivals after this date will be subject to the UK’s future immigration rules. 

Rights of UK citizens and their family members in the EU

43. What’s the position of UK citizens and their families residing in the EU?

In the event that the UK leaves the EU without any agreement, then UK nationals will be subject to the individual settlement rules of each member state where they reside. 

The EU has provided a website which contains details of the individual settlement scheme – 

https://ec.europa.eu/info/brexit/brexit-preparedness/citizens-rights_en#

https://ec.europa.eu/info/sites/info/files/overview-table-residence-rights-uk-nationals-eu27-member-states-21082019_en.pdf?sfns=mo

44. This will cover the UK citizen in the EU member state where they reside, but what if they want to move to another member state after this?

The settlement scheme which applies will only covert he UK national, their family members and dependents in the country where they reside, and they will lose their EU rights to live, work, study and move throughout the EU.

*The above information is what Make UK understands of the information presented by the Government to date as of xx/09/2019. Make UK will continue to update this information as and when appropriate

FOR FURTHER INFORMATION CONTACT:

Tim Thomas
Director of Employment and Skills Policy
020 7654 1523
[email protected]

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