On 9 January, the Withdrawal Agreement finally passed through House of Commons, without much fanfare, by 330 votes to 231 and now Brexit has been fixed for 31 January 2020. The enactment of the Withdrawal Agreement provides a fixed timeline for EU nationals and their family members to apply for the right to remain in the UK under the EU Settlement Scheme (EUSS).
Here are ten things you should note about the EUSS and its impact on your EU national workforce:
1. The EUSS app is available for Android and now for iPhone (models 7 and above) – the app was released in October and can be downloaded from the App Store/Google Play (search for “EU Exit: ID document check”).
2. The easiest application method is via the app and should take around 15 to 30 minutes to complete. Applicants will need their original EU passport (the process involves scanning the passport chip) and their UK National Insurance number.
3. Non-EU family members of EU nationals may be required to send their original passport or Biometric Residence Permit (BRP) to be verified as part of the EUSS application process. They will also be required to submit their biometric information as part of the application process via a UK biometric enrolment centre. It is advisable for the EU family member to apply for their EUSS first – this will generate a reference number which will link the non-EU family member’s application to the EU national’s application, which should speed up the application processing time.
4. EU nationals who wish to apply to naturalise as British must first obtain settled status and, in most instances, then hold this status for 12 months prior to applying to naturalise as British. Settled status cannot be backdated and will be granted on the date it is approved. For those who wish to immediately naturalise as British, please see point 5.
5. The EEA Regulations will continue to remain in place for the duration of the implementation period. This means individuals can still obtain evidence of EEA Permanent Residence, which can be backdated. This is an advantage for EU nationals who have lived in the UK for six years or more and wish to naturalise as British as soon as possible. Applicants opting for this route must meet the EEA Regulation requirements (which are stricter than EUSS requirements in some instances) and pay the GBP65 application fee. Applicants are advised to seek advice from an immigration solicitor if they are considering applying for Permanent Residence under EEA Regulations.
6. When submitting an application via the app, most applicants will receive an initial preliminary determination on whether there is enough government data to grant settled status. Applicants with less than five years’ worth of government data can either accept pre-settled status, or supply further documentary evidence to show they have resided in the UK for five years. The documentation can be uploaded electronically and a full list of acceptable documents can be found here.
7. If an individual receives pre-settled status, it will be granted for a five-year period. Once the individual has resided in the UK for five years (note; the five-year period begins on arrival in the UK, not when pre-settled status is granted), they should then apply to update their status to settled status.
8. In order to be eligible for settled status, individuals must meet a continuous residence requirement of not being absent from the UK for a period of six months or more, in total, per year of residence. If an individual exceeds this permitted allowance in one of the five years, this may mean the individual is not eligible for settled status after five years, although there are some limited exceptions to this rule. Employers should be mindful of this when arranging secondments and assignments for individuals who hold pre-settled status.
9. Under the Withdrawal Agreement, settled status can only be lost if the individual leaves the UK for a continuous period of five years or more. While this is more generous than the two years permitted under the ILR rules for third-country nationals, employers should be mindful of how secondments and assignments may affect an employee and their family’s ability to return to the UK.
10. Individuals have until 30 June 2021 to make their EUSS application. However, it is advisable for individuals to make their EUSS application sooner rather than later.