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Advice

The EU Settlement Scheme – Frequently Asked Questions

Mandy Higgins addresses some frequently asked questions regarding the EU settlement Scheme.

In our recent article, we advised that HR should offer advice and support to their EU employees to ensure that they are aware of their eligibility for Pre-Settled or Settled Status and the process for applying.

Our FAQ will help you answer some of those difficult questions that employees may be asking.

1. What dates do I need to be aware of?

You must be resident in the UK by 31 December 2020 (the “Residency Deadline”).

You must submit your application to the EU Settlement Scheme by 30 June 2021 (the “Application Deadline”).

You must meet the Residency Deadline to be eligible for the Application Deadline.

You have until 30 June 2021 to apply for Settled or Pre-Settled Status and nothing should change for you until then.

However, it is important for all EU citizens to apply under the Settlement Scheme. Failing to do so will leave you undocumented after the Application Deadline and will affect your rights to rent, to employment and to state benefits and healthcare.

2. I am an EU national but have been living in the UK for over 20 years. Does the EU Settlement Scheme apply to me?

Yes.

You should apply, no matter how long you have lived in the UK, unless you have proof that you have Indefinite Leave to Remain and this is still valid.

Even if you have Indefinite Leave to Remain, it is advisable to apply under the EU Settlement Scheme in order to receive an updated status and obtain the additional rights afforded by the UK Government. An example of this is the right to a five-year absence from the UK without losing your settled status (you are only permitted a two-year absence from the UK with Indefinite Leave to Enter or Remain).

3. Can my non-EEA family member join me in the UK?

If you are an EU citizen and have been granted either Pre-Settled Status or Settled Status under the EU Settlement Scheme, then your non-EEA family member can apply to join you by applying for a family permit.

The family permit is valid for 6 months and your family member can leave and enter the UK as many times as they wish.

Your family member can than make a further application under the EU Settlement Scheme once they are in the UK.

4. Do I need to prove that I have been working since coming to the UK?

No.

An award of Pre-Settled or Settled status is made solely on the basis of your residence in the UK. There is also a criminal records check to confirm your suitability. It does not matter whether you are or have been working, self-employed, studying, claiming benefits or dependent on another person. If you are living in the UK and you are an EU, EEA or Swiss citizen or their family member you are eligible to apply to the EU Settlement scheme.

5. If I am married to a British citizen do I still need to apply?

Yes.

Even if you are married to a British citizen, you still need to apply for Settled Status (or pre-Settled Status). You will need to prove that you were resident in the UK before 31 December 2020.

6. My children were born in the UK. Do I need to make an application for them?

Your British-born child may not automatically be a British citizen.

Your child is eligible for Settled or Pre-Settled status if they are under 21 and either they are:

  • an EU, EEA or Swiss citizen; or
  • not an EU, EEA or Swiss citizen, but you are – or your spouse or civil partner is.

Children who hold British citizenship do not need to apply under the EU Settlement Scheme. However, do not assume that children born in the UK are automatically British citizens.

If your child was born in the UK, but at the time of their birth neither parent was a British citizen or settled, then it is possible that your child does not have British citizenship.

However, children born in the UK with at least one parent who is already a British citizen, or has Permanent Residence or Indefinite Leave to Remain when they were born, are British citizens automatically. This is complex and it is advisable to take legal advice if you are unsure.

7. I have a valid Permanent Residence document. Do I need to apply to the EU Settlement Scheme?

Yes.

Any person with a document issued under EU law, such as an EEA family permit or a permanent residence card will need to apply to continue living in the UK after 30 June 2021.

You do not need to provide evidence that you have 5 years’ continuous residence as this will have already been provided as a condition for your Permanent Residence status.

Alternatively, you could consider applying for citizenship before 30 June 2021 if you wish to do so and meet all the requirements. If you become a British citizen before the end of the transitional period, you will not need to apply under the EU Settlement Scheme.

8. When should I apply?

Now.

If you physically arrive in the UK (or are already resident in the UK) on or before 11pm on 31 December 2020, and you intend to remain in the UK beyond 31 December 2020 or you are undecided as to what to do then you should make an application under the EU Settlement Scheme now.

The deadline for applications is 30 June 2021. However, you should apply as soon as possible and certainly before the end of 2020. This is because if you leave the UK after 1 January 2021 and then return, you will be required to show your immigration document. If you have not applied to the EU Settlement Scheme, then you may be admitted to the UK as a ‘visitor’ which means that you may not be able to continue to work or study. 

9. What documents do I need to provide with my application?

To apply under the EU Settlement Scheme, you need to provide:

  • a valid passport/ID and
  • if possible, your National Insurance number. This will allow an automated check of your residence status based on tax and certain benefit records.

If you think that you may not have full tax records at HM Revenue and Customs or there may be gaps in your online records held at the Department for Work and Pensions, then you should find and keep documents that can prove your residence in the UK. Read what documents you can provide to the Home Office if you are asked to provide more evidence. The list includes bank statements, council tax bills, university or school fee invoices, rental agreements, payslips, and bills (e.g. utility, phone or internet).

10. I don’t have an Android phone. How do I apply to the EU Settlement Scheme?

Your application to the EU Settlement Scheme is online and can be done from any device (e.g. laptop or smart phone).

When you apply you can either:

  • Scan your document and upload your photo using the ‘EU Exit: ID Document Check’ app using an Android phone or an iPhone 7 or above. If you can access an Android phone or an IPhone 7 (via a friend or family member) you can download the app and apply. The app does not store any data so it is safe to use on some else’s phone; or
  • Send your document in the post and upload your photo using the online application (you can take this yourself).

11. Do I have to declare a Police Caution as part of the criminal checks?

No.

You will be asked to declare any criminal convictions in the UK and overseas, or those  of any children between the ages of 18 to 21 if you are submitting an application on their behalf.

You are not required to declare ‘spent convictions’, warnings (‘cautions’) and alternatives to prosecution (e.g. speeding fines).

However, you will need to declare any serious convictions, which usually means convictions with a custodial (prison) sentence of 12 months or more, in the UK or anywhere else in the world.

You may still be eligible to apply to the EU Settlement Scheme if you have convictions and they will be assessed on a case-by-case basis. However, you should seek legal advice if you have had more than one conviction or a custodial sentence of 1 year or more.

12. If I have been granted Pre-Settled Status will this be automatically converted to Settled Status when I have completed 5 years in the UK?

No.

You have to apply for Settled Status after you have completed five year’s residence in the UK.

For example, if you applied under the Settlement Scheme after three years of living in the UK and were granted Pre-Settled Status, you will have to apply again once you have reached five years of continuous residence (two years later) in order to receive Settled Status.

13. I have received Pre-Settled Status. How long can I stay outside the UK?

If you receive Pre-Settled Status, you will receive a 5-year visa with an expiry date. You must ensure that you do not leave the UK in the 5-year period (from your first arrival date) for periods longer than permitted if you intend to apply for Settled Status.

The 5-year continuous residence means that, for 5 years in a row, you should physically live in the UK for at least 6 months in any 12-month period.

During the validity of your Pre-Settled Status visa, you can travel in and out of the UK as you wish. However, this status will be lost if you are physically absent from the UK for a continuous period of 2 years.

14. I have received Settled Status. Can I come and go from the UK whenever I want?

Settled Status is technically a form of Indefinite Leave to Remain

The normal length of period you can leave the UK with Indefinite Leave to Remain is two years. However, if you receive Settled Status under the EU Settlement Scheme you will only lose your status if you are absent from the UK for a period of five consecutive years.

15. My application has been unsuccessful. What can I do?

You can apply again at any time until 30 June 2021 if you think that the decision should have been different, e.g. you were granted Pre-Settled Status but expected to be granted Settled Status. There is no charge for this and you can submit new information if you wish.

You may be able to apply for an administrative review of your application if you think that there has been a mistake. There is an £80 charge for this and you should receive a decision within 28 days. Your money will be refunded if the original decision is changed because of an error.

It is advisable to seek legal advice if your application is unsuccessful to ensure that this can be corrected as soon as possible.

16. What are the differences between Pre-Settled Status and Settled Status?

  Pre-settled status Settled status
What is the UK immigration status? Limited Leave to Remain Indefinite Leave to Remain
Who can apply? EU, EEA, Swiss citizens and their family members who:
  • reside in the UK by 31 December 2020; and
  • have no serious criminal record, and
have lived in the UK for less than five years have lived in the UK for at least five years, during which time they spent less than six months abroad in any 12-month period (a single absence of 6-12 months may be allowed for an "important reason"). This is called "continuous residence"
How long is it granted for? Five Years

In order to qualify for ‘settled status’ you will have to have continuously lived in the UK for 5 years or more and have not spent over 6 months abroad in any 12-month period.
Forever
Can I lose it if I leave the UK? You will lose it if you leave the UK for a period of two consecutive years.

In addition, your period of continuous residence resets to 0 if you spend over 6 months abroad in any 12-month period. This means that you will lose the right to change your pre-settled status to settled status.

It can also be revoked for subsequent criminal offending.
You will lose it if you leave the UK for a period of five consecutive years (four years for Swiss citizens).

It can also be revoked for subsequent criminal offending.
When do I need to re-apply? You need to re-apply to change your pre-settled status to settled status before your pre-settled status expires. You will be able to do this as soon as you accrue five years of "continuous residence". Never</br />
You do not need to re-apply.
What are my rights? You will enjoy the same rights to live, work and seek healthcare treatment from the NHS, but pre-settled status does not count as "right to reside" for the purposes of state benefits (e.g. universal credit).

The Government website states that those with pre-settled status will be able to access public funds such as benefits and pensions if you’re eligible for them. Therefore, this is not an automatic right.
You will enjoy the same rights to live, work, healthcare and welfare as UK citizens because your settled status is evidence that you have a right to reside in the UK.
Can I apply for UK citizenship? No. you need to be settled in the UK before you can apply. Yes. However, the requirements for settled status and British citizenship are different. Furthermore, you can only apply after holding settled status for a year - unless you are married to a British citizen.

 

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