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Latitude Law

The EU settlement scheme: August 2018 pilot and beyond – The key details to know


  1. The UK Government is piloting a new Appendix EU to the Immigration Rules. These rules will provide the basis on which resident EU citizens and their family members (and the family members of certain British citizens) can apply for leave to remain in the UK under our domestic immigration law.
  2. The published scheme allows applicants to apply on a voluntary basis for UK immigration status, which they will require to remain in the UK after 31 December 2020. There is no current legal requirement to apply in this way, and leave granted under these new rules will not interfere with pre-existing free movement rights under EEA regulations, for as long as those continue.
  3. The August 2018 roll out is a limited pilot of the scheme, taking effect on 28 August. Full roll out is then expected from late 2018.  The scheme will be fully open by 30 March 2019.
  4. Appendix EU maintains the position outlined by the government concerning EU nationals, and their existing and future family members (as defined below):
    • EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for 5 years will be eligible for indefinite leave to remain;
    • EU citizens and their family members who arrive in the UK by 31 December 2020, but will not have completed a 5-year continuous residence period by that date, will generally qualify for limited leave to remain (enabling them to build up sufficient residence for a later application for indefinite leave to remain);
    • Close family members (spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will be able to join an EU citizen in the UK after 31 December 2020, where the relationship existed on that date and continues to exist at the time of application.
  5. Family member is defined closely within Appendix EU:
    • a spouse/civil partner of a relevant EU citizen, where the marriage/partnership took place by 31 December 2020;
    • a recognised partner, where the partnership was formed and was durable (eg, lived together for at least 2 years) before 31 December 2020;
    • a dependent child under 21 or a dependent parent of a relevant EU citizen;
    • a dependent child under 21 or a dependent parent of the spouse or civil partner of a relevant EU citizen;
    • other dependent relative where that person was resident in the UK with a suitable residence card before 31 December 2020 (but where the person is the relative of a spouse or civil partner rather than the relevant EU citizen, that date moves forward to 01 February 2017)
  6. Relevant EU citizen is also closely defined in Appendix EU:
    • an EU citizen resident in the UK for at least 5-years before 31 December 2020;
    • an EU citizen who has completed the above residence and has already been granted indefinite leave to remain;
    • a relevant naturalised British citizen (meaning an EU citizen who has acquired the right of permanent residence or indefinite leave to remain in the UK and has naturalised as a British citizen so that they hold dual citizenship).
  7. These new rules talk about indefinite and limited leave to remain, not rights of residence or settled (or pre-settled) status.
    • They adopt an approach which will be familiar for those who already work within the framework of the Immigration Rules:
      1. The applicant must make a valid application:
      2. Required application process (online form);
      3. Required fee paid in full;
      4. Required proof of identity and nationality provided;
      5. Required biometrics provided;
    • The applicant must meet the qualifying requirements (see below); and
    • The applicant must not fall for exclusion on suitability
  1. The grounds for excluding an applicant based on their suitability are limited:
    • The applicant currently faces deportation/exclusion/removal from the UK; or
    • In relation to the application – and whether or not to the Applicant’s knowledge – material false or misleading information, representations or documents have been submitted and it is proportionate to refuse on this basis.
  2. When it takes effect on 28 August 2018, Appendix EU will only be open to the following categories of candidate:
    • A non-British relevant EU citizen; and
    • A non-EU national where that person has already been issued with an EEA residence card (including a permanent residence card) as a family member, on the basis of an application made on or after 6 April 2015. Note that it is anticipated that this restriction will be removed as the scheme widens in the coming months.
  3. This initial pilot of the scheme is additionally limited in its location, with applicants either working or studying at specified hospital trusts and universities in the Liverpool region. This will be widened out subject to successful completion of the pilot.
  4. To qualify for indefinite leave to remain under the scheme, an applicant must meet any one of the following requirements:
    • The individual already has a documented right of permanent residence in the UK (and the right has not been lost for any reason, for example due to excessive absences);
    • There is valid evidence of their indefinite leave to enter or remain;
    • The applicant has completed a continuous qualifying period of 5 years in the UK already;
    • The applicant is a relevant EU citizen who has ceased activity in the UK (specific requirements apply);
    • The applicant is the qualifying family member of an EU citizen who has ceased activity (specific requirements apply);
    • The applicant is the qualifying family member of a relevant EU citizen who has died (specific requirements apply);
    • The applicant is a child under the age of 21 of a relevant EU citizen or their spouse or civil partner (specific requirements apply).
  5. As a matter of domestic policy, the Government has decided that family members of British citizens lawfully resident in the UK by 31 December 2020, and recognised under the Surinder Singh scheme by that date, will also be able to qualify for both limited and indefinite leave to remain.
  6. For limited leave applications, the requirements are more streamlined and one of the following has to be met:
    • The applicant cannot currently qualify for indefinite leave to remain, but only because they (as a relevant EU citizen) or their relevant EU family member have not yet completed a 5-year continuous qualifying period in the UK; or
    • The above applies, but the applicant in the family member of a British citizen and UK residence is in accordance with the existing Surinder Singh route.
  7. A continuous qualifying period is strictly defined as a period of residence in the UK:
    • Which began before 23:59 on 31 December 2020 (or later in the case of some qualifying family members – see above);
    • During which none of the following occurred:
      1. Absences from the UK which total more than 6 months in any 12-month period;
      2. A single period of absence which exceeded 12 months (some exclusions apply;
      3. Time spent in prison in the UK (some exclusions apply);
      4. Period during which the person has been subject to exclusions/removal/deportation from the UK (some exclusions apply).
  1. Appendix EU currently does not include citizens of Iceland, Liechtenstein or Norway, or their family members. Irish citizens are simply not required to apply, but can do if they choose (and their family members may also).
  2. Appendix EU will be reviewed while it is in force, with a full review conducted before April 2022. Amendments may be made to the scheme, if necessary.

 

If you would like to discuss your eligibility for indefinite or limited leave to remain, please contact one of our team on 0161 234 6800 (Manchester and London) or 0151 305 9600 (Liverpool).