Six pitfalls to avoid with the EU Settlement Scheme

This article sets out some of the potential pitfalls and suggestions for how to avoid them.

1. People not being aware of the scheme and when they need to apply or take other actions

The Home Office’s latest statistics show that by 30 September 2020 over 4 million people have applied under the EUSS, but the total number of people who are eligible to apply is currently unknown.

As the scheme is an application scheme rather than a registration scheme, those who are currently living in the UK and need to apply but fail to secure their status under it will have no lawful immigration status in the UK beyond 30 June 2021. The Home Office will be able consider late applications with a reasonable excuse, however individuals who apply out of time will not have the right to work, rent or to access free healthcare until such time as their application is approved.

The 30 June 2021 deadline also applies to individuals currently living abroad who acquired permanent residence status in the UK less than five years ago. As permanent residence status is lost after a continuous absence from the UK of two years, it is highly likely that some individuals who are in fact eligible to apply may think the scheme does not apply to them.

The situation can also be more complex for family members who may potentially fall within the scope of the scheme, but who need to take action by 31 December 2020 to secure their eligibility. For example, in many cases the relevant family relationship must be established by 31 December 2020.

A recent report by the Migration Observatory outlines a range of reasons why people may fail to secure status under EUSS, which includes people who are still not aware of the scheme at all, or who think that it does not apply to them.

There are also potential issues that may arise where employers, landlords or others are not aware of the grace period from 1 January 2021 to 30 June 2021, or that EUSS status in many cases will only be verifiable online. Where an eligible person has not yet obtained status under the EUSS, or cannot present physical documentation confirming their status under the scheme, there is a risk that they may incorrectly have employment or rental accommodation refused or terminated, or they may be denied other services.

Actions to take to avoid issues arising:

• Employers can minimise potential disruption to their business by sending periodic firmwide communications with information on the scheme and supporting members of their workforce to apply. This support can range from providing signposting to more detailed information to arranging advice sessions or supporting the cost of immigration assistance for the process.

• Employers with European offices may choose to include information on EUSS as well as on frontier worker permits as part of communications relating to Brexit

• Individuals can choose not to wait until the grace period to make their application, ensure they read the guidance from the Government in their approval letter (which they will receive by email) on how their status can be verified, and share this information with relevant third parties

2. Applying under EUSS when this is not necessary

Some EEA national children born in the UK may be British by birth and should therefore not make an application under EUSS. This is because such children have the right of abode in the UK and are not subject to the Immigration Rules.

Actions to take to avoid issues arising:

• Check whether an EEA national child is a British citizen by birth

• Consider making a British passport application for a child who is a British citizen, in order to evidence their British nationality and facilitate their travel to and from the UK after the end of the transition period

3. People not being lawfully in the UK during the post-transition ‘grace period’

Draft regulations published on 21 September 2020 confirm the Government’s intention to allow EEA nationals and their family members who are lawfully resident in the UK by 31 December 2020 to be covered by a grace period to enable them to apply under EUSS after the end of the transition period. The grace period will last from the end of the transition period on 31 December 2020 until 30 June 2021. It also extends beyond 30 June 2021 where an individual has an EUSS application or related appeal outstanding.

The problem for some people however is that the benefit of the grace period will not apply to those whose residence in the UK is not in line with the requirements of the current Immigration (European Economic Area) Regulations 2016. Obvious examples of people who would be excluded are students and the economically self-sufficient who do not hold comprehensive sickness insurance.

The consequence of not being covered by the grace period is that a person will be exposed to hostile environment measures until such time as they are granted leave under the EU Settlement Scheme. This includes not being allowed to work, rent private accommodation or access free healthcare.

The actions to take to avoid issues arising:

• Ensure comprehensive sickness insurance is in place by 31 December 2020 for individuals who are students or economically self-sufficient

• Submit applications under the EU Settlement Scheme as soon as possible, with a view to minimising or eliminating the time the applicant is in the UK without lawful status

4. Applicants not understanding residence requirements for settled status

If a person with pre-settled status spends more than six months in any 12-month period outside the UK it will break the continuity of their residence for settlement eligibility purposes. There is an exception that a single absence of up to 12 months for an important reason for example childbirth, serious illness, study, vocational training or an overseas work posting can be ignored. Compulsory military service, being abroad as a Crown servant, armed forces member or their family member will also be ignored.

The Home Office has not yet produced any specific policy on how absences due to COVID-19 will be treated for the purpose of settlement under the EU Settlement Scheme, however it is possible that this will be produced at some point in the future.

It is however clear that as long as a fresh continuous residence period is started by 31 December 2020 following a break in continuous residence, it is possible to make a further application for pre-settled status by 30 June 2021. Otherwise, where continuous residence has been broken, it would be necessary to qualify for an extension of stay under one of the categories of the new UK immigration system or depart the UK before the expiry of the pre-settled status.

Actions to take to avoid issues arising:

• Review absences in the lead up to 31 December 2020

• Ensure a fresh period of residence in the UK commences by 31 December 2020 if continuous residence has been broken

• Make a further application for pre-settled status by 30 June 2021

5. Applicants not meeting the residence requirements for naturalisation

The residence requirements for naturalisation are different from the requirements for settlement, and this should not be ignored for those who wish to obtain British citizenship, particularly in view of the travel and other disruptions caused by the COVID-19 pandemic.

In recognition of the effect the pandemic is having on international travel and in particular absences from the UK, on 2 September 2020 the Home Office published an update to its naturalisation guidance. The update confirms that where an applicant has absences from the UK of between 480 to 900 days during the qualifying period for naturalisation (or between 300 and 540 days for applicants with a British spouse), their excess absences may be ignored if they were unable to return to the UK due to a global pandemic.

Absences of more than 100 days but no more than 180 days in the final year of the qualifying period may also be ignored if the applicant was unable to the UK due to a global pandemic. There is also discretion to ignore a higher level of final year absences in limited circumstances.

In most cases, applicants will also be required to have established their home, employment, family and finances in the UK.

Actions to take to avoid issues arising:

• Understand what the residence requirements are for naturalisation ie eligibility may be adversely affected if the applicant spends more than 450 days outside the UK during the five year qualifying period, or 270 days over the three year qualifying period (for those with a British spouse or civil partner), or more than 90 days outside the UK during the 12 months before the application

• Record and monitor absences from the UK

• Avoid non-essential international travel outside the UK until travelling conditions become more predictable

• Consider whether absences from the UK during the COVID-19 pandemic are due to an inability to return to the UK, or preference – in the latter case it may be that excess absences will not be ignored

6. Applicants not understanding the implications of the end of the transition period for a naturalisation application

Naturalisation applications for people with a UK permanent residence document can be submitted 12 months after the date the Home Office has recognised on the permanent residence approval letter, however the Home Office has confirmed that individuals who have a permanent residence document will not be able to apply for naturalisation based on this after 31 December 2020 if they have also been granted settled status under EUSS. They must wait until at least 12 months has elapsed since they were granted settled status. Naturalisation applicants also must build in time to prepare for and pass the Life in the UK Test unless they are exempt from this requirement.

Individuals who have a British citizenship application pending on 30 June 2021 (the main in-country deadline for applications under EUSS) must make an application under the EUSS by 30 June 2021, otherwise they will be considered to be an overstayer.

Actions to take to avoid issues arising:

• Submit any naturalisation application relying on a permanent residence document before 31 December 2020 if eligible

• Submit an application for settled status under the EUSS by 30 June 2021 if an application for naturalisation is still pending at that point

If you are an employer wanting more information on how you can support your EEA workforce in the lead-up to the end of the transition period or beyond, please take a look at our Immigration Solutions for Brexit. If you are an individual or have a specific query on any of the issues raised in this article, please contact a member of our Immigration Team.