Brexit Deal or No Deal

Brexit no deal

As of today’s date, we do not yet know what Brexit means for the UK. The UK is due to leave the UK on 29 March 2019. Let that sink in for a moment. A once politically stable country has now become the victims of party politics as its denizens watch on, feeling more and more powerless over a referendum vote that was supposed to make them feel empowered and optimistic.

And yet, the UK is still a fantastic place to live. So what other positives can we take away from this situation for European Union (EU) nationals and their family members living in the UK? And what is the EU Settlement Scheme?

Brexit deal

On 14 November 2018, the UK government reaffirmed, by way of its draft Withdrawal Agreement that EU nationals, and their family members, will continue to have a right of residence in the UK from 30 March 2019.

To solidify their rights, and confirm their right to stay in the UK after 30 June 2021, EU nationals and their family members must apply for continued residence under a new scheme. That is the EU Settlement Scheme.

Under the EU Settlement Scheme, qualifying individuals will need to apply for pre-settled or settled status during a transitionary period that will end on 31 December 2020, though the deadline for such applications will end on 30 June 2021.

If a person applies for pre-settled status during the transitionary period, they may remain in the UK and apply for settled status after a period of continuous residence of 5 years.

Prime Minister Theresa May has recently stated in her Brexit Statement, before the House of Commons, that no fee would be payable for pre-settled and settled status applications. In other words, the proposed fee of £65 have been scrapped.

However, if applications are free, it begs the question, how will the Home Office finance the large numbers of caseworkers needed to process the millions of applications in a timely and costly manner?

And will the current systems be able be able to cope with the demand for those seeking to provide their biometric data? After all, collecting the biometric data of EU nationals has to be a key reason for practically forcing individuals to switch their current residence certificates and certified permanent residence cards to pre-settled and settled status documents.

‘No deal’

Should the UK leave the EU in a ‘no-deal’ situation, EU nationals and their family members will, according to the Government, continue to have a right of residence under the EU Settlement Scheme.

What is not clear is how the Scheme will apply to European nationals and their family members who wish to enter the UK during the period between 30 March 2019 and 31 December 2020.

If there is a no deal exit, it is likely that some sort of interim arrangement will be put in place, with EU nationals and their family members being subject to the UK’s strict immigration laws after 31 December 2020.

How will this affect you?

For those EU nationals, and their family members, that are already in the UK, it is highly advisable to apply for pre-settled status or settled status during the transitionary period, and certainly before any published deadlines. This will ensure that their UK rights of residency are protected.

For EU nationals already in the UK, who are separated from their family members, now may be a good time to consider whether their non-European family members apply for an EEA family permit to join them in the UK.

What individuals should avoid doing is panicking! Easier said than done! But leaving the UK for more than six months to assess matters from afar, and then returning after Brexit, could have serious implications for EU nationals and their families.

Similarly, leaving the UK and applying for entry clearance under a work visa or other category under the UK immigration rules may prove harmful to European nationals who have already invested a great deal to the UK, as it could re-set the individual’s continuous residence clock and status.

Conclusion

Brexit has led to uncertainty. Uncertainty about what Brexit is and what it means for the UK. There are also question marks as to whether there will be an agreed Brexit deal or not. Nevertheless, amongst the haze, some clarity has been provided. EU nationals and their family members will have a continued right of residence under the EU Settlement Scheme. What individuals must avoid, is doing anything that may negatively impact their long term hopes.

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Written by Carla Thomas – Managing Director at Thomas Chase immigration.

Thomas Chase Immigration offer immigration assistance to individuals, families and organisations.

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Latest Position on Brexit

Latest position on Brexit
Here, is the latest position on Brexit, as it applies to EEA nationals and their family members, following the Home Office’s latest statement.

Settled Status
On 26 June 2017, Prime Minister Theresa May, announced plans to grant nationals from the European Economic Area (EEA), a new ‘settled status’ following the United Kingdom’s (UK) formal departure from the European Union in March 2019.

The new settled status will replace the current ‘permanent residence’ status and allow EEA nationals and their family members, the right to live, work and study in the UK.

On 22 June 2018, almost one year later, the new Secretary of State for the Home Department, Sajid Javid, has released the Home Office’s latest position on Brexit, as it relates to the rights of EEA nationals, as follows:

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As Home Secretary, I take immense pride that so many EU citizens like you have made your home here.

Safeguarding the rights of EU citizens in the UK has always been our first priority and the agreement we reached with the EU earlier this year did just that. The rights that you and your family currently have been protected which include access to healthcare, benefits and pensions.

Away from the negotiations, my team in the Home Office have been working hard to develop the service that you’ll use to get your settled status. This work will continue as we make sure that the system and processes are rigorously tested and meet every requirement ahead of the launch.

Today I am able to announce in more detail what this system will look like.

Most importantly, the application process is designed to be simple. Most people will only need to complete three sections to prove their identity, show that they live here and declare that they have no serious criminal convictions. We will also check employment and benefits records we already hold in government which for many people will mean that their proof of living here is automatic.  We hope therefore most people will not need to do anything beyond typing in personal details.

What’s more, settled status will cost less than the fee for a British passport – £65 and £32.50 for children under 16. For those who already have valid permanent residence or indefinite leave to remain documentation, they will be able to exchange it for free.

There will be support for the vulnerable and those without access to a computer, and we’re working with EU citizens’ representatives and embassies to ensure the system works for everyone.

I should stress that you do not need to do anything just yet. The scheme will open later this year and we are on track to open the scheme fully by 30 March 2019. The deadline for applications to the scheme will be 30 June 2021 so there will be plenty of time for you to apply and there are absolutely no quotas for applications.

I hope you will agree with me that this is an important step towards the commitment we made to you and your families so that you can continue your lives here.

Yours sincerely,

Sajid Javid
Home Secretary

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What next?

If you are an EEA national residing in the UK, it must be stressed again, that nothing has changed. The latest position on Brexit refers to the UK governments plans post-Brexit and in any case, the UK is still a Member State of the EU.

Thinking ahead, it may prove beneficial to wait until the introduction of the new settled status and submit, what promises to be, a streamlined application to register and recognise your UK status. EEA nationals will have the option of doing from March 2019 until 30 June 2021.

However, for many EEA nationals, and their family members, who have already resided in the UK for a significant amount of time, it may be advantageous to apply to certify your permanent residence, so as to facilitate an application for British citizenship. Of course, time will be a major factor as applications will need to be submitted before the end of March 2019.

The key is to plan ahead, and seek advice if you are unclear or wish to discuss your, and your family members’, immediate and longer term options.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families.

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EU Citizens Brexit Update

EU Citizens Brexit Update
On 19 December 2017, Home Secretary, Amber Rudd, issued an update to EU citizens on their status once the UK formally leaves the EU in March 2019. So how does the UK Government intend to protect EU citizens, and their families, after Brexit?

In essence, the Home Secretary maintains that EU citizens’ Treaty rights will continue to be honoured until March 2019. Thereafter, EU citizens will be granted a new status that will allow them to continue to work, reside, study in the UK.

For the Home Secretary’s full update, read on…

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I’m proud that so many EU citizens like yourself have built your lives in the UK and made it your home. We value your contribution which is why the Government put safeguarding your rights as the first priority in the Brexit negotiations.

I am absolutely delighted that we have now reached an agreement with the EU that does this. I know that at times you’ve had an anxious wait while the fine details were ironed out, but we wanted to get it right and we have always had you at the forefront of our thoughts.

We have always said that we will continue to recognise the value you bring to our society, and that we will remain an open and diverse country. Hopefully this deal provides reassurance that we will do just that.

The agreement we have reached ensures the rights you and your family currently have remain[ed] broadly the same with access to healthcare, benefits and pensions protected. And your existing close family members living outside the UK retain the right to join you in future. These rights will be cemented in UK law meaning you can live your life as you do now with the security of knowing they won’t change. Irish citizens also have their existing rights, associated with the Common Travel Area arrangements, protected.

Away from the negotiations, my team at the Home Office has been working hard to build the digital system that you’ll use to get your new status. It’s being designed from scratch to be quick and simple to use. There won’t be bureaucratic hurdles – those processing applications will work in your favour.

What’s more, it will cost no more than the fee a British person pays for a passport and if you already have valid permanent residence documentation it will be free. There will be support for the vulnerable and those without access to a computer, and we’re working with EU citizens’ representatives and embassies to ensure the system works for everyone.

You do not need to do anything just yet. You will see more detail about the settled status scheme from us in the new year and we expect applications will open during the second half of 2018. In the meantime, please do share this message with your friends and family so that they too can stay up to date through our mailing list.

I hope that the agreement we have reached provides certainty to you and your family ahead of Christmas. EU citizens, like yourself, who have made the UK their home are our family, our neighbours and our colleagues and we want you to stay.

Have a very happy Christmas.

Yours sincerely,

Amber Rudd
Home Secretary

 

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Written by Carla Thomas – Managing Director at Thomas Chase immigration.

Thomas Chase Immigration offer immigration assistance to individuals and families.

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EEA PR applications: Assessing your options

EEA PR applications
There is still a lack of clarity about the position of European Economic Area (EEA) nationals in the United Kingdom (UK) post Brexit and this is having an impact on EEA PR applications.

As highlighted in past blogs (and newsletters to our subscribers), EEA nationals will be expected to ‘upgrade’ their current status to the new ‘settled’ status from March 2019, when the UK formally leaves to the European Union (EU).

While nothing has changed for the time being, many clients are instructing us to assist them with their applications to certify their permanent residence (PR).

But before launching into the applications, it helps to understand our clients’ reasoning and assess whether the legal requirements are met. After all, we want to make sure that our clients’ immediate and long terms needs are fulfilled and that the applications are in their best interests.

For example:

Case study 1: Sarah

Sarah is a French national who has lived and worked in the UK for over 10 years.

She owned her own home, had a stable and well paid job, had not used the National Health Service (NHS), apart from the odd check-up at her local doctor’s surgery) and until recently, felt very settled in the UK.

Sarah wished to apply for British citizenship to give her peace of mind in light of the lack of clear Government assurance for EEA nationals.

During our consultation, it became clear that Sarah had automatically acquired permanent residence (PR) in the UK once she had exercised her Treaty rights and continually resided in the UK for 5 years.

Nonetheless, that status had not been certified by the Home Office, a prerequisite for applications to naturalise as a British citizen.

Sarah was advised to submit an application to the Home Office to request that they certify her PR status. Once Sarah had held certified PR status for 12 months, she was advised to apply to naturalise as a British citizenship.

This was additional time that Sarah had not foreseen. Yet we reduced this timeframe by advising Sarah to gather specific documents, as advised by us, to cover a period of 6 years, rather than the required 5-year period.

By doing so, Sarah’s EEA PR application, similar to other EEA PR applications we have submitted, was recognised by the Home Office for a 6-year period, allowing her to immediately apply for British citizenship, an application that is now being considered by the Home Office.

 

Case study 2: John-Pierre

JP had lived the UK for 10 years after having travelled to the UK, from France, to study.
Three years ago, and at the end of his degree and postgraduate degree studies, JP became self-employed.

JP wished to apply for PR status also.

We reviewed JP’s immigration history. During his studies, JP never held Comprehensive Sickness Insurance (CSI) or been issued a European Health Insurance Card (EHIC).

The requirement to hold CSI was not highlighted by the Home Office and when JP once sought treatment on the NHS, it was ever raised as an issue. In fact, JP’s university had not told him about the requirement at the time.

Yet the impact of not having CSI as an EU student in the UK is serious, as JP would find it difficult to demonstrate, to the Home Office, that he was exercising his Treaty rights during his time as a student, as supported by case law.

So what were JP’s options?

JP was advised against submitting an application to certify his PR status at this time.

Could JP instead apply for settlement in the UK on the basis of 10 years continuous and lawful residence in the UK under the UK ? immigration laws?

Well yes and no.

Under the long residence requirements EEA nationals exercising who have exercised Treaty rights in the UK, but not yet certified their permanent residence status, are excluded from the provisions.

Why? Because EEA nationals are not subject to UK immigration rules and therefore cannot rely on those rules for redress.

Nevertheless, JP could submit a discretionary long residence application to the Home Office, outside of the UK immigration rules.

The issue?

JP would need to evidence that he had lawfully and legally exercised his Treaty rights in the UK for the entirety of his time in the UK, a hurdle that would be difficult for JP to overcome as he was not exercising Treaty rights as a student (remember the CSI requirements during his studies?).

Even if that discretionary application were to be approved by the Home Office, it would likely not have been in JP’s interests to make at this time, due to cost factors.

Of most concern to JP, was his wish to sponsor his non-EU girlfriend to join him in the UK, after their wedding early next year (and prior to the UK’s formal exit from the EU). JP did not wish to spend significant amounts of money on an application to the Home Office, unless it was absolutely necessary.

Previously, securing his status under UK immigration laws would have meant that JP would no longer have been recognised as an EU national exercising his Treaty rights in the UK.

Instead, JP would have been treated as a British citizen, and would therefore have been expected to sponsor his wife’s application under harsher and stricter UK immigration rules, rather than EU regulations.

We were pleased to inform JP that any application for British citizenship would not prevent him from exercising his Treaty rights and sponsoring his wife’s application for an EEA family permit due to recent case law.

And, it should be pointed out that UK immigration laws permit British citizens to sponsor their fiancées, a category of persons not strictly recognised as EEA family members.

That said, based on JP’s circumstances and longer term plans, JP was advised to take a wait- and-see approach to his status and arrange for his wife (once married) to apply for an EEA family permit to join him, soon afterwards, in 2018.

Under the Government’s proposals, EU nationals would be granted new settled status once they had completed 5 years’ lawful continuous residence in the UK. More importantly, that status would be granted, according to the Government, whether or not the EU national held CSI as a student (or self-sufficient person) or not.

Of course, the Government’s intentions are not set in stone.

Still, it is an option that would allow JP the opportunity to secure permanence in the UK after March 2019 and to sponsor his wife’s application, once married, under present EU regulations.

 

Have you experienced any of the above when making an application for PR status? What considerations or issues have you faced?

Would you like help with your EEA PR applications?

Contact us at [email protected] for a quick reply.

Written by Carla Thomas – Managing Director at Thomas Chase immigration.

Thomas Chase Immigration offer immigration help to individuals and families secure visas to travel to and remain in the UK.

 

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EU Settled Status Latest

Settled Status
On 7 November 2017, the Home Office issued an update to EU nationals on the proposed EU settled status due to come into effect post Brexit. Read on…

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Dear Thomas Chase,

Brexit negotiations latest

Brexit negotiations
On 19 October, the Prime Minister, Theresa May, has issued an update, via email, about the Brexit negotiations and their impact on EU nationals.

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Dear Thomas Chase,

As I travel to Brussels today, I know that many people will be looking to us – the leaders of the 28 nations in the European Union – to demonstrate we are putting people first.

I have been clear throughout this process that citizens’ rights are my first priority. And I know my fellow leaders have the same objective: to safeguard the rights of EU nationals living in the UK and UK nationals living in the EU.

 

I want to give reassurance that this issue remains a priority, that we are united on the key principles, and that the focus over the weeks to come will be delivering an agreement that works for people here in the UK, and people in the EU.

 

When we started this process, some accused us of treating EU nationals as bargaining chips. Nothing could have been further from the truth. EU citizens who have made their lives in the UK have made a huge contribution to our country. And we want them and their families to stay. I couldn’t be clearer: EU citizens living lawfully in the UK today will be able to stay.

 

But this agreement will not only provide certainty about residence, but also healthcare, pensions and other benefits. It will mean that EU citizens who have paid into the UK system – and UK nationals into the system of an EU27 country – can benefit from what they’ve put in. It will enable families who have built their lives together in the EU and UK to stay together. And it will provide guarantees that the rights of those UK nationals currently living in the EU, and EU citizens currently living in the UK will not diverge over time.

 

What that leaves us with is a small number of important points to finalise.  That is to be expected at this point in negotiations. We are in touching distance of agreement.  I know both sides will consider each other’s proposals for finalising the agreement with an open mind. And with flexibility and creativity on both sides, I am confident that we can conclude discussions on citizens’ rights in the coming weeks.

 

I know there is real anxiety about how the agreement will be implemented. People are concerned that the process will be complicated and bureaucratic, and will put up hurdles that are difficult to overcome. I want to provide reassurance here too.

We are developing a streamlined digital process for those applying for settled status in the UK in the future. This process will be designed with users in mind, and we will engage with them every step of the way.  We will keep the cost as low as possible – no more than the cost of a UK passport.

 

The criteria applied will be simple, transparent and strictly in accordance with the Withdrawal Agreement.  People applying will not have to account for every trip they have taken in and out of the UK and will no longer have to demonstrate Comprehensive Sickness Insurance as they currently have to under EU rules.  And importantly, for any EU citizen who holds Permanent Residence under the old scheme, there will be a simple process put in place to swap their current status for UK settled status.

 

To keep development of the system on track, the Government is also setting up a User Group that will include representatives of EU citizens in the UK, and digital, technical and legal experts. This group will meet regularly, ensuring the process is transparent and responds properly to users’ needs. And we recognise that British nationals living in the EU27 will be similarly concerned about potential changes to processes after the UK leaves the EU.  We have repeatedly flagged these issues during the negotiations. And we are keen to work closely with EU Member States to ensure their processes are equally streamlined.

 

We want people to stay and we want families to stay together. We hugely value the contributions that EU nationals make to the economic, social and cultural fabric of the UK. And I know that Member States value equally UK nationals living in their communities. I hope that these reassurances, alongside those made by both the UK and the European Commission last week, will provide further helpful certainty to the four million people who were understandably anxious about what Brexit would mean for their futures.

 

Yours sincerely

Theresa May, Prime Minister

_____________________________________________________________________________________________

Written by Carla Thomas – Managing Director at Thomas Chase immigration.

Thomas Chase Immigration offer immigration help to individuals and families.

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Brexit, Settled Status & EU Nationals

Thomas Chase Immigration - Brexit, Settled Status
The UK government has set out its negotiation position with the European Union (EU), on the future status of approximately 3 million EU nationals currently exercising Treaty rights in the UK. The published information provides an outline of the government’s position on a ‘new settled status’, but is very short on detail. Here, we review the latest government proposals and their possible impact for EU nationals and their families.

Settled Status
A new ‘special settled status’ was announced by Prime Minister, Theresa May on 26 June 2017, aimed at granting EU nationals “the right to live in Britain, to undertake any lawful activity, to access public funds and to apply for British citizenship.”

The proposals will allow EU nationals to acquire or transfer their permanent status into a special settled status, thereby bringing them within the restrictive UK immigration laws that currently apply to nationals outside of the European Economic Area (EEA).

Let’s look at the proposals in more detail. As part of the UK government’s wish to ‘safeguard’ the rights of EU nationals in the UK, the government said it will:

  • Comply in full with its legal obligations, including in respect of administrative procedures for providing documentation for those exercising Treaty rights until such time as the UK leaves the UK;

 

  • Create new rights in UK law for qualifying EU citizens, resident here before the UK’s exit from the EU. Those rights will be enforceable in the UK legal system and will provide legal guarantees for those EU. In addition, the Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK;

 

  • These rights will apply to all EU citizens equally and the UK government will not treat citizens of one member state differently to those of another qualifying EU citizens will have to apply for their residence status. The administrative procedures which they will need to comply with in order to obtain these new rights will be modernised and kept as smooth and simple as possible;

 

  • Bring the application process under a separate legal scheme, in UK law, rather than the current one for certifying the exercise of rights under EU. The UK government intends to tailor the eligibility criteria so that, for example, it will no longer require evidence that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ in order to be considered continuously resident;

 

  • Provide all qualifying EU citizens adequate time to apply for their new residence status after the UK leaves the UK. There will be no ‘cliff-edge’ at the point of the UK’s withdrawal from the EU;

 

  • Guarantee that qualifying individuals will be granted settled status in UK law (indefinite leave to remain pursuant to the Immigration Act 1971). This means they will be free to reside in any capacity and undertake any lawful activity, to access public funds and services and to apply for British citizenship;

 

  • Allow EU nationals to qualify for the new settled status as long as they were resident in the UK before a specified date and must have completed a period of 5 years’ continuous residence in the UK before they apply for settled status. They must also still be resident in the UK at that point to qualify;

 

  • Allow EU citizens who arrived and became resident before the specified date, but who have not accrued five years’ continuous residence at the time of the UK’s exit from the EU, to apply for temporary status in order to remain resident in the UK. Once those EU nationals have resided in the UK for 5 years, they will be eligible to apply for settled status;

 

  • Allow EU citizens who arrived after the specified date, to remain in the UK for at least a temporary period. They may become eligible to settle permanently, depending on their circumstances. However, this group should ‘have no expectation of guaranteed settled status’;

 

  • Allow family dependants, who join a qualifying EU citizen in the UK before the UK’s exit from the EU, to apply for settled status after 5 years. The 5 years’ period includes time accrued after Brexit. Those joining after the UK’s exit will be subject to the same rules as those joining British citizens or alternatively to the post-exit immigration arrangements for EU citizens who arrive after the specified date;

 

  • Define the ‘specified date’ as no earlier than the 29 March 2017, the date the formal Article 50 process for exiting the EU was triggered, and no later than the date of the UK’s withdrawal from the EU. The specified date will be agreed with the EU as part of delivering a reciprocal deal; and

 

  • Apply rules to exclude those who are serious or persistent criminals and those whom we consider a threat to the UK.

It cannot be stressed enough that the above proposals are just that, proposals. The proposals will form part of the UK’s negotiations with the EU and is likely to change or bend as time progresses. Regardless, as they stand, they will have a huge impact on EU nationals’ ability to work, study and unite with family members in the UK.

Summary

The new settled status will apply to EU nationals and their family members who are currently exercising Treaty rights in the UK, but have not yet acquired 5 years’ continuous residence, and will also be applicable to EU nationals that have already applied to the Home Office to certify their permanent residence status.

Applying for the new settled status will be done under a ‘fast- track process’.

Great. Some information has been provided. And yet, so much has been left unsaid.

  • What will the fast track process look like?
  • How does the government intend to fast-track the applications for the large number of EU nationals in the UK?
  • It is not clear if the application process for the new settled status will differ for EU nationals that have already gone through the onerous process of applying to certify their permanent residence status and supplied a great deal of documents, as compared to those that had not certified their permanent residence status at all.
  • How will settled status for EU nationals already in the UK, differ from the settled status for EU nationals arriving after the ‘specified date’?
  • Will EU nationals arriving after the cut-off date see a restricted definition of ‘family members’ as seen under the current UK immigration rules?
  • Will EU nationals that had certified their permanent residence status be expected to complete another form and submit masses of documents again?
  • What is the specified cut-off date?

Another key omission? Fees. How much will EU nationals be expected to pay to apply for the new settled status? For instance, national from outside of the European Economic Area (EEA) can expect to pay £2,297 (fees as applied from 6 April 2017 and current as of today’s date). Compare that to an application to certify permanent residence, currently £65.

Will EU nationals be expected to pay hundreds or even thousands of pounds for settled status? We don’t yet know although the UK government proposes that fees will be reasonable.

And will the fast-track system be offered as standard or will a premium fee be attached? We also do not know.

What is clear is that some EU nationals are holding off making an application to certify permanent residence status and instead waiting for details of the new settled status. The merits of doing so will of course depend on each individual and their circumstances.

Settled status, students and the self-sufficient

At present, EU nationals in the UK as students or who are self-sufficient, are required to hold comprehensive sickness insurance (CSI). Without CSI, such EU nationals are deemed not to have exercised their Treaty rights in the UK.

The government has proposed that CSI will not be a requirement for EU nationals seeking the new settled status.

Permanent residence and British citizenship

What factors should EU nationals factor into their decision making?

Well, not all EU nationals are eager to apply for British citizenship or meet the requirements for British citizenship. In fact, some nationals are precluded from holding dual nationality by their home country.

For those keen to secure British citizenship, applying to certify permanent residence status, especially for those already exercising their Treaty rights in the UK for 5 years and over, can be beneficial. Why? Because it may be a ‘quicker’ route to naturalising as a British citizen.

When applying for British citizenship, EU nationals have been exercising Treaty rights for 5 years, at which point they will acquire permanent residence. Thereafter, they must apply to the Home Office to certify their permanent residence and hold such recognised status for a further 12 months.

Examples

For example, one of our client’s Eliana, owned and ran her own business in the UK for the past 8 years and successfully applied for British nationality. Eliana first applied to certify her permanent residence status on the basis that she could evidence exercising her Treaty rights as a self-employed person for the past 7 years. Not the easiest of exercises but Eliana only managed to obtain 7 years of the recommended documentary evidence.

We prepared the application and asked the Home Office to not only certify Eliana’s permanent residence status for the past 5 years, but for the past 7 years. This was duly done and allowed Eliana to immediately apply for British citizenship without waiting for a further 12 months.

Equally, another client had her permanent residence status recognised based on her UK activities over the past 5 years. After 12 months’ she may apply for British citizenship, well before the UK formally leaves the EU, assuming the cut-off date is when the UK officially leaves the EU.

This option may be far ‘quicker’ route to British citizenship as compared to applying for settled status, once it is rolled out, and holding that status for an additional 12 months. At the moment, there is nothing to say that the new settled status will be retrospective in law.

Family members

There are good reasons to wait and delay making an application British citizenship. One of which is related to family members. Under EU regulations, EU national exercising Treaty rights in the UK, are entitled to have their direct and indirect family members join them in the UK.  This includes non-EEA family members.

Once the EU national becomes a British citizen, family reunion becomes restricted, onerous and expensive.

An EU national sponsoring a non-EEA spouse to join the in the UK can be as (relatively) straightforward as submitting a EEA family permit application at zero cost.

Doing so as a British citizen means meeting the financial requirements and earning a salary of at least £18,600 per annum, and Home Office fees in the region of £1400 plus an Immigration Health Surcharge of approximately £600.

And applying for an elderly parent to a British citizen in the UK is extremely difficult, with extended family members such as cousins and uncles being almost impossible.

Conclusion

The government has laid out its proposals, for a new settled status, for EU nationals exercising Treaty rights in the UK and for those arriving after the UK formally leaves the EU. Nevertheless, the proposals are extremely light on details, making it difficult for EU nationals to assess the best way forward. That is, whether to apply to certify their permanent residence status, thereafter apply for British citizenship, or simply wait and see how the plans for new settled status materialise.

Much will depend on the circumstances of the individual EU national, and we have listed some of those considerations above. And of course, we must remember that the proposals, at least for now, are just that…published plans to be negotiated with the EU. As such, they are subject to change. So we will watch this space and keep you updated.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration solutions to businesses, individuals and families looking for friendly, straightforward advice.

Call to action

If you would like further guidance on the rights of EU citizens or assistance with an application for a permanent residence document, contact us at Thomas Chase Immigration to arrange a consultation. Or learn more about immigration from our blogs.

 

You may also like:

EEA permit applications and processing times

Permanent Residence to British citizenship: Is it worth the hassle?

Overseas Visitors and UK Healthcare

We look at overseas visitors to the UK from the EEA and non EEA countries and and access to healthcare
It is holiday season and millions of travellers from all over the world are expected the visit the UK. Most visitors will have adequate medical insurance. Yet what happens if your travel insurance doesn’t go far enough or you don’t have travel insurance at all, but require healthcare. And what impact will rule changes have from October 2017. We answer those questions, and more, in this post on overseas visitors and healthcare.

In 2015, there were 36.1 million visitors to the UK from overseas visitors, 5.1% higher than in 2014. In 2016, the number of overseas visits to the UK reached record levels of 37.6 million. 

Access to healthcare treatment during a person’s travels depends on whether the visitor is travelling from within or outside of Europe.

EEA NATIONALS

For those visitors to the UK, from within the Economic European Area (EEA), it is recommended to apply for the European Health Insurance Card (EHIC). The EHIC entitles EEA nationals to access necessary treatment at a reduced cost, or sometimes at no cost, in certain European countries with state provided healthcare, and is free.

Treatment for pre-existing medical conditions are covered. Yet, the EHIC has its limitations. For instance, it will not cover private medical healthcare costs such as the cost of being flown back to the European country of residence. And while routine maternity care is covered, it will not cover the cost of specifically travelling to the UK to give birth within the UK’s National Health Service (NHS)

For this reason, it is highly recommended that EEA nationals travelling to the UK on holiday hold both an EHIC card and valid and adequate travel insurance.

Only EEA nationals from the following countries are required to hold adequate medical and travel insurance and need not possess a EHIC:

  • The Channel Islands, including Guernsey, Alderney and Sark
  • The Isle of Man
  • Monaco
  • San Marino
  • The Vatican

If an EEA national visiting the UK finds themselves in need of medical treatment, they may dial 112, the free European emergency number, for immediate assistance.

The EU Directive route

The European Union (EU) Directive route entitles EEA visitors to purchase NHS or private healthcare in England and seek reimbursement for medically necessary treatment from their country of residence. The reimbursements are limited to the amount the treatment would normally cost in their home country. It does not cover emergency treatment and prior authorisation may be required

NON-EEA VISITORS

Visitors to England, more specifically, from outside of the EEA must have personal medical provisions or travel insurance to cover for the length of their visit.

If a visitor requires certain emergency treatment, the NHS will not turn the person away and some NHS services and treatments are free, making them exempt from charges.

These include:

  •  Accident and emergency services
  • Family planning services though it does not include infertility treatment
  • Treatment for most infectious diseases, including sexually transmitted infections (STIs)
  • Treatment required for a physical or mental condition caused by torture, female genital mutilation (FGM), domestic violence or sexual violence and yet charges will apply if the visitor enters England for the purpose of seeking that treatment

What happens if they then seek unplanned medical treatment from the NHS? Unfortunately, it’s not uncommon visitors to book their travel and omit or forget to purchase travel insurance or even seek the minimum travel insurance cover available. In such cases, overseas visitors receive a medical bill for fees chargeable at 150% of the NHS standard rate. Ouch!

Different rules apply for overseas visitors requiring medical assistance in Scotland, Wales and Northern Ireland.

It is also worth pointing out that some non-EEA visitors may be exempt from NHS charges. They include those traveling for longer than 6 months to work, to study or join family members, as they will have paid a separate Immigration Health Surcharge.

Changes to Healthcare rules from October 2017

As of 23 October 2017, non-EEA nationals must pay for non-urgent treatment and services, in advance. Visitors will be given an estimate of the treatment costs and will be expected to pay for this upfront, or treatment will not be provided.

From October 2017, failure to pay such charges will adversely impact upon any future immigration applications.

Reciprocal Agreements

Exemptions also apply to visitors from countries that have reciprocal healthcare agreements with the UK.

The reciprocal agreements entitle visitors, from specified countries, to access immediate emergency medical treatment free of charge. They are:

  • Anguilla
  • Australia
  • Bosnia and Herzegovina
  • British Virgin Islands
  • Falkland Islands
  • Gibraltar
  • Isle of Man
  • Jersey
  • Kosovo
  • Macedonia
  • Montenegro
  • Montserrat
  • New Zealand
  • Serbia
  • St Helena
  • Turks and Caicos Islands

The nature and access to free treatment will differ for each country under their respective reciprocal agreements. http://www.nhs.uk/NHSEngland/Healthcareabroad/countryguide/NonEEAcountries/Pages/Non-EEAcountries.aspx

The agreements do not normally apply when the person has travelled to the UK for the purpose of obtaining healthcare.

There are non-EEA countries which previously held reciprocal healthcare agreements with the UK. Those agreements came to an end on 2016. As a result, visitors from the following countries must ensure they have adequate travel and health insurance, as they will be charged for accessing healthcare and treatment on the NHS.

  • Armenia
  • Azerbaijan
  • Barbados
  • Belarus
  • Georgia
  • Kazakhstan
  • Kyrgyzstan
  • Moldova
  • Russia
  • Tajikistan
  • Turkmenistan
  • Ukraine
  • Uzbekistan

On another note, from 21 August 2017, employers of overseas visitors working on UK-registered ships will be charged for NHS fees incurred.

Conclusion

With travel season well underway, it is important, whether you are from within the EEA or a non-EEA national, to know what emergency and non-urgent treatment and services you can access in the UK. Having adequate travel and medical insurance can provide a great deal of comfort, but if that, for whatever, reason is not the case, there may be other measures in place to help you get the treatment you need at reduced costs. By being informed, you can ensure you have a safe and enjoyable holiday, avoid a huge bill and at worse, for non-EEA nationals in particular, prevent adverse consequences in any future immigration applications.

Happy travels!

 

Key information

Call 999 if someone is seriously ill or injured and their life is at risk

Call NHS 111 if you urgently need medical help or advice but it’s not a life-threatening situation. You can also call NHS 111 if you’re not sure which NHS service you need.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration provide an end-to-end immigration service to individuals and families to help make the process as smooth as possible

Call to action

If you would like further guidance or assistance with an immigration matter, contact us at Thomas Chase Immigration to arrange a consultation. Or learn more about immigration from our blogs.

Brexit & EU citizens in the UK

Thomas Chase Immigration - EU citizens
What is the UK government’s position on the future rights of EU citizens living in the United Kingdom (UK), as Brexit negotiations get underway?

Earlier today, Prime Minister Theresa May updated Parliament on the European Union (EU) summit and her proposals for EU citizens in the UK. Those with 5 years’ lawful residence at the point of cut-off, will be granted ‘settled status’, akin to indefinite leave to remain and current permanent residence provisions

The cut-off will be no later than the UK’s exit from the EU and will be agree with the member states.

After, the cut-off date, EU citizens will be able to bring their family members (dependants) to the UK in the same (very restrictive) way as British status.

For those EU nationals in the UK with less than 5 years’ residence, who arrive before the cut-off, it is proposed that they may remain in the UK until they are in a positon to apply for 5 years’ settled status.

The system of EU citizens’ registration is to be streamlined and will not require comprehensive medical insurance in future!

Contentious areas

Let’s not forget, the proposals were dismissed by the European Council President, Donald Tusk, as falling below expectations’.

Key contentious areas in the UK government’s proposals include jurisdictional issues and dependants.

The UK government’s proposal that EU nationals’ rights should be overseen by a UK body or the Home Office is unlikely to be accepted by the EU member states. They believe that jurisdiction of EU rights should fall to the European Court of Justice.

Another contentious area for the member states will be around settled EU citizens and their family members. The proposal by the UK that EU citizens may continue to enjoy freedom of movement for their family members but this should fall under UK immigration rules after the cut-off date, is unlikely to be supported by the member states. Instead, they will prefer to see such rights continue indefinitely.

Conclusion

The announcement to respect EU citizen’s right to permanent residence in the UK is welcome. Yet, the proposals leave many unanswered questions and is unlikely to be the government’s final position as Brexit negotiations continue. The UK will need to resolve the possible contentious issues, of jurisdiction and dependant rights, with the European Council, to not only to provide clarity to EU nationals, but so it may agree reciprocal arrangements for UK nationals residing in the EU and begin trade talks.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration solutions to businesses, individuals and families looking for friendly, straightforward advice.

Call to action

If you would like further guidance on the rights of EU citizens or assistance with an application for a permanent residence document, contact us at Thomas Chase Immigration to arrange a consultation. Or learn more about immigration from our blogs.

 

You may also like:

EEA permit applications and processing times

Permanent Residence to British citizenship: Is it worth the hassle?

 

Brexit latest: Brexit, Trade, Sovereignty and Immigration

Thomas Chase Immigration - Birexit
The UK government looks set to trigger article 50, the formal notification of its intention to leave the European Union (EU). Once triggered, the leaders of the 27 countries within the EU, must unanimously agree how to extricate the UK from the myriad of shared EU regulations by way of transitional and new arrangements. Two years after article 50 is triggered, the United Kingdom (UK), according to the Lisbon Treaty, will no longer be a part of the EU. What are the implications of Brexit to UK trade, sovereignty and immigration? And how are they linked?

Background

Much has been made of the approach the UK government will take during the two years of negotiations once article 50 is enacted. Will the government take a ‘hard’ approach, a sort of clean break? Or will a ‘soft’ approach to leaving the EU be implemented, so that the UK gives up its power and voice within the EU while managing to claw onto some of the benefits of free trade.

Regardless, of the approach to negotiations, we know with certainty, as a result of the Supreme Court’s judgement of 24 January, that the UK parliament must have a say in the UK’s approach to negotiations. And given the members of parliament’s fear of defying the results of the advisory referendum to leave the EU for reasons of reducing EU immigration and magnifying UK sovereignty, article 50 looks set to be triggered within Prime Minister Theresa May’s proposed timescale of March 2017. The timescales are supported by the government’s ‘Brexit Bill’ which comes before parliament in the week beginning 30 January.

The impact to Brexit on Trade and Sovereignty   

The UK’s overall economic growth is mainly dependent upon import and exports. According to the Office of National Statistics (ONS):

‘UK exports have grown at an average rate of 8.7% in nominal terms over the last four decades (1974 -2014), however the level of UK exports as a proportion of world exports has been gradually declining’

The ONS added:

‘World Bank data shows that the UK’s share fell from 7.3% in 1970 to 3.6% in 2014, indicative of slower UK export growth relative to a number of other global economies such as China, Germany and the USA. This decline marks a halving in the UK’s share of world trade since the 1970s. In 1970, the UK held the 3rd highest export share among the G7 economies and China but has since alternated between 3rd, 4th and 5th positions’.

In relation to Brexit, in 2015 (figures for 2016 not yet being available), exports of goods and services to the EU accounted for 44% of the UK’s total exports of goods and service). See ONS’ bulletin

Therefore, leaving the EU, will significantly minimise the UK’s ability to export goods and services to the EU without restrictions. As a third country, the UK will experience an increase in its exporting costs.

To compensate for the impact of trade with the EU post-Brexit, the UK must look to other countries to close the gap.

In her speech of 17 January, Theresa May set out for plan for Brexit negotiations. May said, that she had been given a mandate by the British people to bring about change and outlined her vision for the UK:

‘I want this United Kingdom to emerge from this period of change stronger, fairer, more united and more outward-looking than ever before. I want us to be a secure, prosperous, tolerant country – a magnet for international talent and a home to the pioneers and innovators who will shape the world ahead. I want us to be a truly Global Britain – the best friend and neighbour to our European partners, but a country that reaches beyond the borders of Europe too. A country that goes out into the world to build relationships with old friends and new allies alike’.

For a full transcript of Theresa May’s speech, click here

Yet, trade deals, by their very nature, require compromise, external overarching controls, subjugation and therefore a limit on the sovereignty of the State. To what extent is the UK prepared to compromise its sovereignty in order to secure trade deals with world leaders? And who will it trade with?

Trading partners

One possible post-Brexit trading partners will be the United States (US) and Prime Minister May has taken steps ingratiate herself with the incoming US president, President Donald Trump with a State visit to the US scheduled for Thursday 26 and a meeting with the President set for Friday 27 January.

ONS data from 2015, indicates that the US is the UK’s largest export partner, after Germany. In 2015, the USA accounted for 19.7% and 11.1% of UK’s total exports and total imports, respectively.

In fact, between 2005 to 2015, the UK continually ran a trade surplus with the US with an average value of £28.1 billion, a figure that peaked in 2013 at £40.3 billion but has since fallen to £39.4 billion in 2015. See ONS’ bulletin for further details

Moving forward, the US has a president that has given voice to a sort of protectionist US environment, one where US businesses will reap the rewards of lower taxation, if they ensure that their businesses remain in the US and employ US workers. Countries have been openly criticised by the President for exporting goods to US citizens, created by overseas workers, ignoring the fact that some overseas companies sell goods to US citizens made in the US by US workers – companies such as Samsung Electronics America Inc. and BMW US Manufacturing Company.

This raises a number of questions. How much will UK companies have the accede to Trump’s vision of protectionist US? Will UK companies be welcomed, as early indications show, to enter into trade deals as long as they are heavily weighted in the US’ favour? Will UK businesses be expected to open more branches and sites in the US in order to better access the US market, to the detriment of UK workers? And is it a price worth paying when figures show that even if the US doubles its exports from the UK, this will still fall short of the numbers needs to meet the EU trade shortfall.

Can the UK even expect an equitable trade deal with the US in two years’ time once it has officially left the EU? After all, the UK can only negotiate and agree terms with the US government while it remains part of the EU, with the deal being solidified post-Brexit. However unlikely it may be, it is possible for the US to renegotiate terms once the UK’s economic position becomes clearer post-Brexit which is possible if the UK (and US) find themselves in economically and politically weakened positions in 2020.

For this reason, the UK will have to look for trade deals with not only the US but other countries further afield.

Immigration

In line with her vision of Global Britain, Theresa May has expressed a desire to negotiate trade deals with India and Australia. Both India and Australia share this view, at a price. Favourable immigration controls for their citizens, something which Theresa May has refused to do.

Under current immigration laws, anyone entering the UK from outside of the European Economic Area, is subject to a very strict Points Based System, unlike EU nationals who have freedom of movement. (For the avoidance of any doubt, yes, we do indeed have a Points Based System in place).

During Foreign Secretary Boris Johnson’s address to the second Raisina Dialogue event in New Delhi, India in January, Johnson insisted that by leaving the EU, the UK would be free to enter into trade partnership with India, the world’s fastest growing economy. In response, Dr S Irudaya Rajan, an adviser to the Indian government on migration issues reaffirmed the importance of mobility stating that that free movement of its citizens and the free flow of goods and services and investments were inseparable.

Dr Rajan went on the say:

‘India is an important country for the UK and curbing the flow of good minds, whether they are students or skilled workers, cannot be good for the UK’.

This view was supported by Yashvardhan Kumar Sinha, the recently appointed Indian High Commissioner to the UK who commented that the issue of visas is not going to go away, and expressed concerns on the UK’s restrictions on Indian students and IT professionals under the Points Based System.

Such proclamations were echoed by Alexander Downer, the Australian High Commissioner to the UK and former Foreign Minister of Australia. Alexander Downer told BBC Radio 4  listeners during an interviewer, that:

‘We want to see greater access for Australian business people working in the UK and that’s often been a part of the free-trade negotiations-it hasn’t always been that way, but it’s often been a part of our free trade negotiations’.

Adding:

‘For example, an Australian company that invests in the UK might want to bring some of its executives to the UK. That can be done now with what are called tier two visas, but could be made a little bit easier’.

Given the views openly expressed by Indian and Australian government representatives, can Theresa May maintain tight immigration controls in keeping with her reign as Home Secretary? Or will India and Australia bide their time until they secure beneficial terms on the lifting of visa restrictions? If visa restrictions are relaxed for some overseas nationals, this may be seen to compromise to the UK’s ability to determine its own immigration policy in the way that ‘Brexiters’ did not envisage. In fact, some Brexiters may feel betrayed if immigration increases rather than falls. EU nationals living in the UK may also feel betrayed if, having paid the price of Brexit, they too were to see an increase in immigration.

Conclusion

Brexit has proven to be a complex outcome based of the premise of greater self-determination and immigration controls for EU nationals. And though there is an element of crystal ball gazing, there is a strong reason to believe that, post-Brexit, the UK may have less sovereignty and greater immigration as a direct result of trade deals with countries outside of the EU. Immigration has many benefits for the UK, but without proper debate and understanding about the possible consequences of Brexit on trade, sovereignty and immigration, we may unwittingly see continued resentment towards those who travel to the UK from overseas.

 

Written by:

Carla Thomas – Managing Director at Thomas Chase immigration.

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Contact Thomas Chase Immigration for an immigration consultation or assistance with an immigration matter. We offer immigration solutions to businesses, individuals and families by looking at the bigger picture to get the right solution

Brexit: Retained Rights of Residence

“Brexit: Retained Rights of Residence” is locked Brexit: Retained Rights of Residence
Brexit remains a hot topic for European nationals and with good reason. The UK government has announced a time frame of March 2017 for the start of formal negotiations to leave the European Union. Many European nationals are eager to know how, and to what extent, their current rights to work and reside in the UK will be protected. But what of non-EEA family members whose circumstances have change? Here we look at the Retained Rights of Residence provisions and the documents that need to be gathered and submitted to support an application to UK Visas and Immigration.

Background

The Immigration (European Economic Area) Regulations 2006, later replaced by the Immigration (European Economic Area) Regulations 2016,  sets out the rights of nationals, of the European Economic Area (EEA) and Switzerland, and their family members to enter and reside in the UK.

In order to first enter the UK, the non-EEA family member of sponsoring EEA national must apply for an EEA family permit. The exception is where the non-EEA family member holds a qualifying EEA State residence card issued in Germany or Estonia or already holds a residence permit or permanent residence card.

Once in the UK, non-EEA family members can find themselves in a vulnerable position if their circumstances change and they do not yet have permanent residence. With Brexit looming, it has become crucial than ever for such individuals protect their status.

Retained Rights of Residence categories

Regulation 10 allows EEA nationals family members that are from outside the EEA retain their right of residence in the UK if:

  • The EEA national:
    • Is deceased – regulation 10(2)
    • Leaves the UK – regulation 10(3)
    • Parent of a child who retains the right of residence: regulation 10(4)
    • Divorces their spouse or dissolves their civil partnership – regulation 10(5)
  • The family member is the parent of a child who retains the right of residence – regulation 10(4)

Regulation 10 only applies on or after 30 April 2006 and cannot be applied if the circumstances happened before that date. For example, if a person married an EEA national and subsequently divorced them before 30 April 2006 they would not be entitled to retain the right to reside.

Below we look at what each of the categories mean and list some of the key documents that must be submitted to UK Visas and Immigration when applying for retained rights of residence.

Death of the EEA national sponsor: regulation 10(2)

If the sponsoring EEA national has died, their non-EEA national family members may retain a right of residence. To do so, the following circumstances must be in place:

  • The EEA national died on or after 30 April 2006 and was a qualified person or had a right of permanent residence when they died
  • the applicant was living in the UK for at least one year immediately before the EEA national’s death as:
    • a family member of the EEA national qualified person, or
    • an EEA national with a permanent right of residence.
  • The EEA national was a worker, self-employed person, or self-sufficient person; or
  • The non-EEA national family member is carrying out activities similar to that of a qualified person and is a worker, self-employed or a self-sufficient person.

Where the non-EEA family member is a student, they must demonstrate that they are self-sufficient to fall within the provisions of regulation 10(2).

Documents

The evidence that a non-EEA family member will need to submit with their application are:

  • A valid passport
  • A valid passport or EEA ID card of the EEA national to evidence their nationality
  • Evidence of their genuine relationship to the EEA national
  • The EEA national’s death certificate
  • Evidence that the EEA national was exercising free movement rights at the time of their death
  • Evidence of the non-EEA family member’s residence in the UK for at least one year immediately before the EEA national’s death
  • That they are a worker, self-employed person or self-sufficient person or the family member of such a person
  • Where applicable, evidence of the child being educated in the UK immediately prior to the EEA national ‘s death
  • Documents showing the child’s continuing education in the UK, for example a letter from the child’s school
  • The child’s or children’s identity documents and birth certificate

The above is not an exhaustive list and will need to be tailored to the individual circumstances of the individuals.

Leaves the UK – regulation 10(3)

A non-EEA national spouse or civil partner will lose their right of residence if the sponsoring EEA-national leaves the UK while they are still married or in a civil partnership. This is because they can no longer be viewed as a ‘qualified person’ exercising free movement or Treaty rights.

Where this happens, the non-EEA family member will need to demonstrate that they instead fall under fall one of the other provisions of regulation 10.

The exception is where the family member of a direct descendant of the EEA national.

Documents

Below is a guide to the documents that need to be gathered and submitted with the application.

  • A valid passport evidencing nationality.
  • Evidence of their relationship to the EEA national.
  • Proof that the EEA national has left the UK, if applicable. This can be in the form of a declaration
  • Evidence that the EEA national was exercising free movement rights prior to leaving the UK
  • Evidence of the child being educated in the UK immediately prior to the EEA national leaving the UK
  • Documents showing the child’s continuing education in the UK, for example a letter from the child’s school
  • The child’s or children’s identity documents and birth certificate.

The above is not an exhaustive list and will need to be tailored to the individual circumstances of the individuals.

Parent of a child who retains the right of residence: regulation 10(4)

A non-EEA family member who is the parent of a child or children of an EEA national may retain a right of residence until the child reaches the age of 21.

It is possible for the non-EEA family member to continue their residence beyond the child 21st birthday if the child has, for instance, a severe physical or mental disability and the non-EEA national’s assistance will allow that child to continue with their education in the UK.

Documents

The evidence that a non-EEA family member will need to submit with their application for retained rights are:

  • A valid passport
  • 2 colour passport sized photographs for each person
  • Birth certificate evidencing the relationship of the non-EEA and EEA national to the child or children
  • The child’s or children’s evidence of identity
  • Evidence of the non-EEA national’s relationship to the EEA national
  • Their relationship to the EEA national
  • Their custody of the child, if appropriate. For instance, a letter that has been officially sworn by a solicitor confirming that the parent has custody.

The above is not an exhaustive list and will need to be tailored to the individual circumstances of the individuals.

Divorces their spouse or dissolves their civil partnership – regulation 10(5)

Separation

Where there has been a separation, the non-EEA national will continue to be a family member with the right to reside in the UK, as long as the sponsoring EEA national continues to exercise free movement rights in the UK, or has acquired permanent residence.

Rights of residence continues until:

  • The divorce is finalised and a decree absolute is issued
  • The marriage is annulled or
  • The civil partnership is dissolved

Once the above papers have been issued, the non-EEA national’s right of residence will come to an end.

Divorce

Most of the queries I receive on retained rights of residence are from individuals whose marriage or civil partnership to the sponsoring EEA national has officially ended.

Where the relationship ends in divorce, the non-EEA spouse or civil partner will lose their right of residence if:

  • The EEA national leaves the UK while they are still married or in a civil partnership. This is because they can no longer be viewed as a ‘qualified person’), and
  • the non-EEA national does not qualify for a retained right of residence under any other part of regulation 10.

Conditions of Regulation 10(5)

To avoid this, the non-EEA spouse or civil partner, and anyone who was related to the EEA national sponsor by marriage or civil partnership, must meet the conditions of regulation 10(5) in order to retain a right of residence in the UK. Those conditions are that:

  • The non-EEA national has been married to, or in a civil partnership with, the EEA national for at least three years immediately before beginning proceedings for divorce, annulment or dissolution; and
  • Has lived in the UK with the EEA national sponsor for at least one year during the time of their marriage or civil partnership.

Documents

The evidence that a non-EEA family member will need to submit with their application for retained rights are:

  • A valid passport for the non-EEA national
  • For the sponsoring EEA national evidence of their nationality, which must be a valid passport or EEA ID card
  • 2 colour passport sized photographs
  • Evidence that the marriage or civil partnership lasting for at least three years immediately before the initiation of proceedings for divorce, annulment or dissolution
  • Evidence of the non-EEA family member and EEA national’s residence in the UK for at least one year during the marriage
  • Evidence of the termination of the non-EEA national’s relationship with the EEA national on or after 30 April 2006. This could be a:
    • Decree absolute
    • Decree of annulment
    • Certificate of dissolution
  • Proof that the EEA family member had permanent residence or had been a ‘qualified person’ (i.e. a worker, student, self-employed person, self-sufficient person or someone looking for work) in the UK

The above is not an exhaustive list and will need to be tailored to the individual circumstances of the individuals.

Other factors

It is important to satisfy the conditions under regulation 10 otherwise the application for retained rights of residence may not only be refused, but their registration certificate or residence card may also be revoked.

Under the Free Movement of Persons Directive 2004/38/EC family members who have a retained right of residence do so ‘exclusively on a personal basis’. In practice, this means that the non-EEA family member cannot be the sponsor for another family member.

In their published guidance, UKVI states the following by way of an example:

‘…if a non-EEA national with a retained right of residence gets married to another non-EEA national, her new husband will not have any rights under the regulations. Her new husband would only be able to enter or remain in the UK if he qualifies under the Immigration Rules’.

It is possible for non-EEA national family members of British citizens (Surinder Singh cases) to continue to remain in the UK. However, this is beyond the scope of this article and will be covered in a separate article.

Conclusion

Non-EEA family members of EEA nationals may continue to reside in the UK under certain circumstances. The circumstances are limited and do require a significant amount of documentation to be submitted along with the application for retained rights of residence.

Brexit Latest: Brexit and Immigration

Brexit Latest: Brexit and Immigration
At the Conservative Party Conference in Birmingham on Sunday, Prime Minister Theresa May laid out her position on Brexit. Article 50, the formal mechanism for beginning exit negotiations from the European Union (EU), would be invoked by the end of March 2017.

During the negotiations, Mrs May said that immigration control, and not better trade deals, would be the priority. This was the strongest indication yet of a ‘hard Brexit’ approach, an approach that was reaffirmed by David Davis, the Brexit Secretary, who promised to not only control immigration but to ‘bring numbers down’ when he addressed the conference.

Yet, the hard Brexit approach has already began to cause some friction within in the Conservative party. There are those within (and outside) the party who would like to see the government adopt a ‘soft Brexit’ approach. One that would see access to the single market balanced with free movement of people.

Mrs May also proposed the repeal of the 1972 European Communities Act (ECA) which gives direct effect to all EU law, and spoke of the introduction of the ‘Great Repeal Bill’ which would enshrine ‘all’ EU law into UK law. She stated:

‘This historic bill, which will be included in the next Queen’s speech will mean that the 1972 Act, the legislation that gives direct effect to all EU law in Britain will no longer apply from the date on which we formally leave the European Union’

Mrs May added;

‘Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end’.

The Repeal Bill’s aim to enshrine all EU laws in UK law seems at odds with Mrs May’s stance on UK sovereignty. The likely aim of the bill to provide much needed assurances to the business sector that little will change immediately post-Brexit.  

Yet, this would still provide little comfort to businesses and UK universities uncertain about not only trade but still confused as to the long term impact to European employees, workforce and students.

In fact, little information was given to recent and longer term

EU residents in the UK. Mr Davis said that the UK, during negotiations, will protect the rights of EU citizens in the UK ‘so long as Britons in Europe are treated the same way’, suggesting that there is still some way to go before EU citizens gain clarity on their longer term status.

Aside from any deals yet to be negotiated, the likelihood is that post-Brexit, EU laws enshrined in law will be diluted and amended over time. Eventually, UK courts will need to interpret immigration laws in keeping with the will of Parliament and not Europe.

For those involved in immigration, we can only hope that vital safeguards are not lost altogether. We will watch this space closely to see how things progress.