Brexit EU settlement scheme opens to the public - Sophie Barrett Brown from Laura Devine Solicitors explains

Following extensive media coverage, many would have noticed that from 21st January 2019, EU nationals with valid passports and family members with valid biometric residence cards (BRCs) can use the new EU Settlement Scheme (EUSS) as part of its final (public) test phase before its full rollout on 29 March 2019. Registration under the EUSS is voluntary and will be accessible via the gov.uk website and on Android devices.

New status

Under the EUSS those with residence in the UK of 5 years or more should be granted ‘settled status’ (indefinite leave to remain) and those with less than 5 years’ residence should receive ‘pre-settled status’ (leave to remain).

Cut-of

Deal

Under the Prime Minister’s Brexit deal, EU nationals entering the UK up to the end of the envisaged transition period ending on 31 December 2020 (and their family members) may qualify for status under the EUSS. In this scenario, EU nationals and their eligible family members should have until 30 June 2021 to apply.

No deal

In the event of a no-deal scenario, only those entering the UK up to 29 March 2019 are guaranteed rights under the scheme with a deadline to register by 31 December 2020.

Application process - The application process will involve three main steps:

• Proof of identity: applicants may complete the ID verification stage via an app (available for Android devices only) which can be used to scan valid ID documentation. Those without Android devices can use one of the designated scanning centres (13 in total for the whole country). Once the initial app stage is complete, applicants can continue the application process using the gov.uk website.
• Confirmation of ‘continuous residence’ in the UK: this should be completed via automated checks with other government departments such as HMRC and DWP. Where no such data is available, applicants may be required to submit additional documentation.

Continuous residence is subject to limits on absences of up to six months in each of the five qualifying years (unless for an important reason) and, in contrast to free movement legislation, should not require proof of exercise of Treaty rights.

• Declaration of criminal convictions: only serious (or multiple) offences are expected to affect the outcome of the application.
  Free of charge
  After much pressure, Theresa May announced earlier today that fees for the EUSS will be scrapped and that those who have already paid will be refunded in full.

Evidence of status

Status granted the EUSS will be ‘digital’ and verifiable online with no physical document being issued to the applicant.

Who can be refused?

Only applicants who do not meet the eligibility criteria (for example through absences exceeding six months in any of the five qualifying years) or those with serious and/or multiple criminal convictions should fall for refusal. In previous test phases all applicants were granted either settled or pre-settled status.

To register or not to register?

While the EUSS promises a simple registration process and fast processing times, there may be circumstances in which it may not be advantageous to use it. For example, those wishing to naturalise straightaway may prefer to obtain a permanent residence (PR) certificate evidencing their earlier-acquired PR as otherwise they would normally be required to wait 12 months after they have obtained settled status under the EUSS.

Irish citizens and certain other individuals including those with a claim to British citizenship (either automatic or by registration) need not apply under the scheme.

Brexit Services

Laura Devine Solicitors offer a wide range of Brexit-related services, including seminars, Brexit ‘surgery’ sessions and detailed briefings providing advice to businesses and employees, as well as assisting individuals and families with their applications. If you would like to know more about how we can help you and your business prepare for Brexit, please contact your usual LDS lawyer or EUenquiries@lauradevine.com.

BFI run conferences, workshops and in-house training on Brexit featuring leading immigration lawyers, top consultants and real life case studies to ensure employers can prepare for Brexit. Hear Sophie at our next 'Workforce Planning Post-Brexit Conference: Future-Proofing Your Recruitment, Retention and Policy' in London on Tuesday 26th February 2019