Anastasija Vasiljeva, Immigration Solicitor
The Brexit transition period ended at 11pm on 31 December 2020. As a result, EU, EEA and Swiss citizens and their close family members are no longer able to exercise their EU free movement rights to travel to and/or reside in the UK. Those who have not yet acquired their status in the UK using the EU Settlement Scheme will be able to do so until the end of the ‘Grace Period’, ending on 30 June 2021.
From 1 July 2021, all nationals of EU, EEA and Switzerland will be required to demonstrate that they either have a ‘pre-settled’ or ‘settled’ status in order to be able to continue residing lawfully in the UK.
Those EU, EEA and Swiss citizens who have not yet obtained a ‘pre-settled’ status will need to make an application before 30 June 2021 in order to continue residing in the UK past that date. Applicants will need to show that they started residing in the UK before 31 December 2020 to be successful in their application.
Is pre-settled status enough?
Those who have already acquired ‘pre-settled’ status in the UK will need to make sure that they apply for their ‘settled’ status before the expiry of their initial status in the UK. Failure to apply before the expiry of the current status would mean that they will be residing in the UK unlawfully, unless they can make an application as soon as possible and rely on one or more of the “good reasons” for the delay.
There are no exceptions to this requirement for those who work or have property in the UK and each EU, EEA and Swiss citizen will have to make their application under the EU Settlement Scheme before 30 June 2021 in order to continue residing in the UK lawfully past that date.
Is it possible to lose your pre-settled status?
Current rules suggest that those who have ‘pre-settled’ status in the UK can spend up to two years in a row outside the UK without losing their status. However, those who intend to apply for ‘settlement’ after 5 years of their pre-settled status will need to demonstrate that they have not been absent from the UK for more than 6 months during the last 5 years. There is currently an exception to this rule for those who have returned to the UK before 31 December 2020.
People with ‘settled’ status will not be affected, and their status will not lapse unless they are out of the UK for 5 years.
Can family members of EU, EEA and Swiss nationals apply?
They can, as long as they can satisfy the Home Office that their relationship has been ‘durable’ before 31 December 2020. If the non-EEA partner has previously obtained a residence card issued under the EEA Regulations (or a Family Permit issued under Appendix EU) they will be able to apply to remain in the UK as a family member under Appendix EU. Ordinarily, the Home Office will expect evidence that the couple have been living together in a relationship akin to marriage or civil partnership for a minimum of two years. The applicant will also have to demonstrate that the relationship is still ‘durable’ on the date of application.
Those who do not have a residence card issued will need to demonstrate that they satisfy the definition of ‘durable partner’ within the Appendix EU, which appear to be complex and unclear. Put simply, there are three categories of partners who can benefit from this going forward:
- Those who have been in a ‘durable relationship’ with a relevant EEA national but did not reside in the UK prior to 31 December 2020;
- Those who have been in a ‘durable relationship’ with a relevant EEA national and have been previously residing in the UK under another category (student, skilled worker etc.); and
- Those who have been in a ‘durable relationship’ with a relevant EEA national, resided in the UK previously but have now broken their continuous residence in the UK (for example by an absence of over 6 months).
Upgrading to ‘settled’ status
Normally, in order to upgrade their status to ‘settled’, EU, EEA and Swiss citizens would need to demonstrate a “continuous qualifying period” of 5 years residency in the UK, that began before 11pm on 31 December 2020 and which has not been broken by an absence of a total of six (or more) months in any 12-month period, subject to some exceptions.
Those who have Registration Certificates, Permanent Registration Certificates, Residence Cards or Permanent Residence Cards
Those EU, EEA, Swiss nationals (or their family members) who have the above named residency documents issued under the previous legislation will have to transfer their statuses to the EU Settlement Scheme before the end of the Grace Period to ensure that they continue holding a valid leave to remain in the UK under domestic immigration law.
What needs to be done
Those who have not yet taken steps to apply under the EU Settlement Scheme must do so as soon as possible and no later than 30 June 2021. It is advisable to apply as soon as possible to ensure you have collected the relevant documents and are able to meet all requirements of the relevant provisions within the immigration rules.
Quastels’ immigration department have ample experience in representing EU, EEA and Swiss nationals as well as their family members in their respective applications under the Home Office’s EU Settlement Scheme. If you would like to discuss any specific questions or concerns regarding the scheme, or your/your family members’ eligibility, please contact us by email at firstname.lastname@example.org or by telephone +44 7436 338557 and we will be happy to assist.
Please note – this article does not constitute legal advice.