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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?

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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?

 

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Top 10 Q&A on British Citizenship

Latest position on Brexit

Over time, I have received many questions from individuals seeking guidance on how to apply to become a British citizen. With that in mind, I have collated the top 10 questions and answers on all aspects of British citizenship.

  1. What is British Citizenship?

A British citizen has a right of abode in the United Kingdom (UK). In practice, if you have British citizenship, you have the right to permanently live and work in the UK without any immigration restrictions. And you will not need permission from an Immigration Officer to enter the UK

  1. Who can apply for British citizen?

Unlike some countries, you do not automatically become a British citizen because you were born in the UK. Under the British Nationality Act 1981, much will depend on your date of birth.

For instance, you will be a British citizen if you were born on or after 1 January 1983, and your mother or father was either:

  • a British citizen when you were born
  • ‘settled’ in the UK when you were born

It is typical for you to be a British citizen if one of your parents was born in the UK or had become a British citizen at the time of your birth.

Different provisions apply if you were born outside the UK or were born in the UK before July 2006. Where you fall within the latter, your father’s British nationality will normally only pass to you if he was married to your mother at the time of your birth.

Likewise, if you are an overseas national, Commonwealth citizen or national of the European Economic Area (EEA), you will not automatically acquire British citizenship merely because you have lived in the UK for a lengthy period of time.

However, there are a number of ways to become a British citizen. One of the main ways is to naturalise as a British citizen.

To apply to naturalise as a British citizen, you must meet the following requirements:

  • Be over 18 years of age
  • Meet the residence requirements
  • Have passed the Life in the UK test
  • Have a Secure English Language Test (SELT) grade of at least B1, or an equivalent level qualification, such as a degree taught or researched in English or be a national of a majority English speaking country
  • Be of good character
  • Intend to make the UK your permanent home

The residence requirement is very important and you must show that you:

  • Have lived in the UK for at least 5 years before the date of submission of the application
  • Have settlement (indefinite leave to remain) or permanent residence for at least an additional 12 months preceding the date of the application
  • To have spent less than 450 days outside the UK during those 5 years
  • To have spent less than 90 days outside the UK in the last 12 months
  • Not have been in breach of the immigration laws during your time in the UK

Applications on the basis of marriage or civil partnership to a British citizen is a frequently used route also. The key differences are:

  • You must evidence that you have lived in the UK for at least the 3 years before your application is submitted
  • You must have pent no more than 270 days outside the UK in those 3 years
  • You must have spent no more than 90 days outside the UK in the last 12 months
  • You must not have broken any immigration laws while in the UK

It is also possible to register to become a British citizen if:

  • You have another form of British nationality
  • You were born before 1 January 1983 to a British mother
  • You were born to a British father, even if he was not married to your mother
  • You were born in the UK on or after 1 January 1983
  • You are under 18 and do not fit into the other categories
  • You have a connection with Gibraltar or Hong Kong
  • You are stateless
  1. Are British citizens allowed dual citizenship?

British citizens are allowed to hold dual nationality. Nevertheless, some countries may treat the acquisition of another citizenship as a renouncement of their original nationality.

To avoid this happening to you, it is crucial to verify, with your country of origin, the potential implications of applying for British citizenship before an application is prepared and submitted.

  1. What is the British citizenship test and where can I sit the test?

Details of the British citizenship test, or Life in the UK test, can be found in my previous blog.

  1. What does British citizenship cost?

The application fee payable to UK Visas and Immigration (UKVI) will depend on how you qualify to become a British citizen. For instance, as of 18 March 2016, fee for British citizenship based on:

  • Naturalisation as an adult: £1,236
  • Registration as an adult: £1121
  • Registration as a child: £939
  1. Who can sign British citizenship application form?

As part of your application process, you must nominate two referees, one of which may be of any nationality and has professional standing in the UK.

The other referee must be a British citizen and hold a valid British passport. That person must be either a professional person or over the age of 25.

In addition, your referees cannot be:

  • Related to you
  • Related to each other
  • Your solicitor or agent
  • Someone who has been convicted for an imprisonable offence during the last 10 years

UKVI will make contact with your referees to verify your identity so it is important that your referees are able to respond in a timely manner to UKVI’ queries. Doing so will avoid delays to the application and at worse, a refusal.

  1. Can I apply for British citizenship if I have a driving conviction or criminal record?

UKVI had introduced a revised ‘good character’ requirements for all decisions made on or after 11 December 2014. As a result, UKVI will look at your previous conduct to assess whether you are likely, in future, to show ‘respect for the rights and freedoms of the United Kingdom’, observe national laws and fulfil your duties and obligations as a resident of the UK.Thomas Chase Immigration - British Citizenship

In doing so, UKVI will carry out criminal and civil record checks. All criminal offences, regardless of how minor the offence or when and where the offence was committed, will be considered by UKVI. This is because UKVI is not bound by the Rehabilitation of Offenders Act. Therefore, previous offences such as theft, drink driving, using a mobile phone while driving or driving while disqualified may likely prevent you from becoming a British citizen until there is a sufficient gap between the date of the offence and the date of the application.

Your immigration history will also be taken into account by UKVI when considering your application. For instance, if you entered the UK illegally, assisted in illegal migration or evaded immigration control, you will be prevented from making a British citizenship application until at least 10 years has passed from the date of entry to the UK. This will have a significant impact if you are a refugee who had used one of the above methods to gain entry to the UK. Similarly, if you overstay your visa for a relatively small period, your application for British citizenship may be refused.

And the tentacles of the good character requirements stretch even further so that financial issues such as bankruptcy or failure to pay your council tax can also have an adverse impact upon your application.

In light of the good character requirements, it is crucial to seek expert immigration advice if any of the above applies to you.

  1. Where should I send my British Citizenship application form?

Completed application forms should be sent to:

UKVI 
Department 1 
The Capital 
New Hall Place 
Liverpool 
L3 9PP 

The application must be accompanied by the correct application fee and supporting documents.

  1. How long does a British citizenship application take to be processed?

Applications are acknowledged within 2 weeks of receipt. UKVI aims to consider the application within 6 months. UKVI will retain all documents during that time including your passports. That said, it is possible to request the return of your passport although UKVI can request that it is resubmitted for further scrutiny.

10.Where are British citizenship ceremonies held?

Once your application has been approved by UKVI, you will be invited to attend at a Citizenship Ceremony. At the ceremony you will be asked to affirm or swear an oath of allegiance to Her Majesty the Queen and to pledge your loyalty to the UK.

Ceremonies take place at your local authority, and your UKVI Approval Letter will provide details of what you must do next and who to contact in order to make the necessary arrangements.

 

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration solutions to businesses, individuals and families by looking at the bigger picture.

Call to action

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

You may also like:

Top 10 Questions on the Life on the UK Test

 

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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.

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UK Residence Card Applications and Processing Times

UK Residence Card processing times

With UK Visas and Immigration (UKVI) finding themselves inundated with applications for a UK residence card and certificate from EEA nationals and EEA family permit holders, it could be easy to assume that the application has fallen into a bottomless pit, only to be seen at some point in the distant future.

After all, we have all heard of the ongoing immigration cases sitting with UKVI for years and years.

However, UK residence card applications, and applications to certify permanent residence status,  are different. This is because UKVI’s service standards, as governed by EU regulations, dictate that UKVI must issue the actual UK residence card within 6 months.

The 6 months’ time frame begins from the date that UKVI receives the application, and the required supporting documents that prove that a right of residence exists.

This means that it is crucial for the applicant to submit the correct information and documentation to UKVI as part of the application.

In some instances, the applicant may legitimately require the application to be fast tracked. If so, the UKVI guidance, as of 30 August 2016, states that a request to expedite the UK residence card application should be made via email to:

The following information must be provided with the request to expedite the matter:

  • Full name
  • Date of birth
  • Date of application
  • Royal Mail Recorded Delivery number, if applicable
  • Method of payment used when making the application (card, cheque etc.)
  • Case ID or Home Office (HO) reference, if known
  • Date of planned removal, if applicable

UKVI will review the request and decide whether to fast track the matter.

Extenuating or exceptional circumstances which may warrant an application to expedite the application for residence, and even permanent residence, can include:

  • A family emergency such as bereavement or serious illness
  • The need to travel for essential medical treatment overseas

In all cases, documentary evidence of the exceptional, compelling circumstances must be provided together with the information outlined above.

The request should be sent to UKVI via email. From experience, it is often helpful to write to the caseworker directly – the details of which can be found in any previous correspondence from UKVI.

Where there is no correspondence, it may help to write to UKVI at:

UK Visas and Immigration
Permanent Migration
PO Box 306
Liverpool
L2 0QN

It is worth adding that UKVI do not consider family celebrations such as weddings and holidays to be exceptional or compelling ‘family emergencies’ to merit expediting an application.

Further, UKVI does not consider day-to-day difficulties as compelling enough to warrant the application being fast tracked. This includes any reasonable difficulties that non-European family members may experience.

That said, it is still worth making the request to UKVI, explaining the circumstances (difficulties in securing a particular job) and documenting any difficulties experienced as a result of the delay.

Hopefully, there will be little need to take such action.

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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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Permanent Residence to British Citizenship: Is it Worth the Hassle?

You have applied to the Home Office for your Permanent Residence card. Post Brexit, is it worth making an application to become a British Citizen?

That depends.

The new Prime Minister, Theresa May, has stated that Brexit will mean Brexit. There will likely be changes for EU nationals seeking to relocate to the UK and work in future beyond Brexit, subject to any reciprocal agreements and negotiations on freedom of movement.

However, for those EU nationals that already have Permanent Residence (PR) in the UK and have applied to certify this status by the Home Office, very little is likely to change. Except that they will have rights under EU law that will no longer strictly apply to the UK post Brexit.

Applying to become a British citizen can be beneficial for those EU nationals with PR that have made the UK their long term home and intend to continue doing so.

If life in the UK is important to you, you couldn’t imagine life elsewhere and you want the added security of knowing that your status will be protected, the extra step can help. And the good thing is, many countries within the EU allow nationals to hold dual nationality.

But there is a proviso and that is around timing. If you are an EU national with non-EEA family overseas, it may be considerably easier to have them join you under the current EU regulations than under UK immigration rules, This is because UK immigration laws place strict financial and other requirements on non-EEA family members joining British family members.

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration solutions to businesses, individuals and families by looking at the bigger picture.

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Brexit: What next for EU nationals?

Thomas Chase Immigration - EU nationals

Following Brexit, it can feel as if the road ahead has been closed to EU nationals. But it doesn’t have to be. I must have drafted and redrafted this article so many times since the British public voted 52% to 48% to leave the European Union (EU) on 23 June 2016. Perhaps it was a case of the Brexit Blues which led me to struggle with this particular piece. Fellow bloggers elsewhere seemed able to produce articles on the impact of Brexit on any number of industries and sectors. Indeed, I had come across numerous articles on the impact of Brexit on EU nationals and EU workers.

And yet for all the articles written, I’m not sure that EU nationals appreciate that things are not as bleak as they first appear; that they have options for securing their status in the UK and that the sooner they begin thinking about next steps, the better. With this in mind, I finally felt upbeat about putting pen to paper.

EU nationals and ‘Treaty Rights’

First of all, it’s worth highlighting which nationals we are talking about.

EU nationals include:

Austria France Malta
Belgium Germany Netherlands
Bulgaria Greece Poland
Croatia Hungary Portugal
Republic of Cyprus Ireland Romania
Czech Republic Italy Slovakia
Denmark Latvia Slovenia
Estonia Lithuania Spain
Finland Luxembourg Sweden

In addition, nationals outside of the EU, but within the European Economic Area (EEA) that may also enjoy free movement are:

Iceland Liechtenstein Norway

The only exception is Switzerland, which is neither a member of the EU or EEA but whose nationals may also enjoy the same rights.

In a nutshell, Treaty Rights’ and ‘free movement’ are the rights that EU nationals and their family members enjoy to travel and relocate to the UK (and other parts of the EU) to take up employment and seek work. Not just that, EU nationals may also study in the UK, establish and grow a business, live off their savings or continue their retirement.

Brexit is unlikely to change this. Such entitlements will continue for the next few years as the UK still remains an active member of the EU.

In fact, the referendum outcome merely informed the government that the majority of British nationals wish to leave the EU (however small that majority may be). The outcome is not legally binding though the acting Prime Minister, Theresa May, is committed to honouring the outcome, citing that ‘Brexit means Brexit’.

The nature and timing of any changes to the status of EU nationals presently in the UK will be better understood once the UK formally activates Article 50 of the Lisbon Treaty (the legal instrument giving notice of the UK’s intention to leave the EU). At that point, the UK will begin to put forward its proposed terms to the EU Member States during that 2-year negotiation process.

With this in mind, it may be easy for EU nationals to wait and see what happens. After all, with everything remaining the same for at least the next 2-years, why panic?

Fair point. The answer is actually two-fold. On one hand, the rights of EU nationals or EU workers in the UK is likely to be protected beyond 2 years by way of transitional or interim immigration arrangements. But on the other, EU nationals will likely have to demonstrate, by way of documentary evidence, that they have been exercising their Treaty Rights in the UK at a certain point so as to fall within the transitional arrangements. The difficulty for EU nationals (and immigration advisers carefully scrutinising this area) is that we do not know what those transitional arrangements will be and what parameters will be set by the Home Office (the UK government department responsible for immigration matters).

Rather than the wait-and-see approach, EU nationals may wish to submit an application to the Home Office at the earliest opportunity.

Permanent Residence status

For instance, EU nationals exercising Treaty Rights in the UK for 5 years automatically acquire permanent residence in the UK. Previously, they never needed to give their status a second thought. Proving their entitlement to take employment in the UK was as simple as presenting a valid EU passport or ID card.

Post-Brexit, it may be sensible for EU nationals to submit an application to the Home Office to certify their permanent residence status for added security. Such applications are onerous and time consuming, which is why many EU nationals avoided submitting applications up to this point.

EU nationals will be required to submit documentary evidence to demonstrate that they have been exercising Treaty Rights for the last 5 years (or less depending on certain circumstances).

In addition, they must show that they have made the UK their home and resided here for a continuous period. Holidays and trips abroad will be taken into account and should not be so excessive as to cause the Home Office to surmise that the EU national did not actually make the UK their permanent home.

Given the number of documents involved, the application process can take 6 months for the Home Office to conclude. Indeed, a recent report highlighted that the Home Office were inundated with applications of this type. I’m sure you can see why that would be the case!

The added benefit of this approach is that it provides EU nationals with the additional identity documents required for an application for British Citizenship, once they have resided in the UK for 6 years and can evidence their permanent residence. Having dual British and European nationality can be especially advantageous for many EU nationals.

For those that have already certified their permanent residence and have lived it the UK for at least 6 years, it may be time to consider making an application for British nationality.

Even if EU nationals chose not to submit an application to certify their residence status, collating the above documents, for themselves and any family members, will be prudent so as to comply with any transitional arrangements that will likely be introduced.

Registration Certificate

EU nationals that have not quite exercised Treaty Rights in the UK for a full 5 years, submitting an application for a registration certificate to certify their status to date, may be a better option.

EU nationals had little need to submit such an application unless they wanted further proof of their entitlements to access certain services in the UK. However, non-EU family or extended family members may be familiar with this process.

Fortunately, this application can be submitted by post and in person and can therefore be quicker to process.

Should the EU national come to be in the UK for 5 years Post-Brexit, it may more straightforward for them to convert that status to permanent residency.

Conclusion

Brexit has led to EU nationals to question their immigration status in the UK for the first time. Despite suffering from a dose of Brexit Blues, the situation does not need to be bleak. Nothing has changed and there is an expectation that post-Brexit, transitional arrangements will be put in place to respect the entitlements of EU nationals that have made the UK their home.

That does not mean however, that EU nationals should do nothing. It may be prudent for EU nationals to assess how to solidify and best protect their status in the UK, by way of making an application to recognise their permanent residence, applying for a residence certificate, collating documents just-in-case, or applying to become a British Citizen. Such applications will require EU nationals to evidence that they have been exercising Treaty Rights in the UK and that they have made the UK their permanent home. Given that EU nationals have to provide details of any absences from the UK for holidays or any other time spent abroad, what EU nationals should avoid doing in the short term is leaving the UK and returning to mainland Europe in order to see what happens. Doing so will likely break the chain of continuous leave in the UK and that’s when options for EU nationals could be compromised.

Should you require any help with your EU status, why not arrange a consultation with me to discuss your options? The email address is [email protected]