This is a sponsored article by Wesley Gryk Solicitors LLP. All opinions in this column reflect the views of the author(s), not of Europe Street News.

There is a confusing array of labels attached to the immigration statuses which allow EU citizens to reside in the UK permanently.  This article aims to show their main characteristics and differences to make sure EU citizens and their family members are aware of their choices.

Indefinite leave to remain

Prior to 2006, EU nationals who had been in the United Kingdom for four years exercising Treaty rights (i.e. working in employment or on a self-employed basis, residing as a student or self-sufficient person) could obtain this immigration status. They did however need to apply to the Home Office for it and of course many did not bother as they did not need it for their everyday life.  This status allows people to live in the United Kingdom indefinitely.  They can leave for up to two years as long as they plan to return and the United Kingdom remains their main home.

The question therefore arises whether somebody in this position needs to apply under the EU Settlement Scheme, the new residence system created under the EU withdrawal agreement.  The answer is “no”.  A person in this position will be able to show that they have indefinite leave to remain and therefore can continue to reside in the United Kingdom indefinitely. 

However, in practice, it is likely that people in this situation will possess a very old document and they may want to get it updated by applying under the EU Settlement Scheme.  Further, as you will read below, the status under the EU Settlement Scheme awards individuals slightly better rights and therefore this may be another reason to make the free application for settled status.

Permanent residence

Permanent residence is an EU law concept which came into force in the United Kingdom in April 2006.  In short, people who have exercised Treaty rights (i.e. working in employment or on a self-employed basis, residing as a student or self-sufficient person, the latter two with comprehensive sickness insurance) for five continuous years automatically gained permanent residence. 

Unlike indefinite leave to remain, permanent residence is not a status granted by the Home Office but one that is automatically acquired by having exercised Treaty rights.  However, if you did want to evidence the right, you could apply to the Home Office for a permanent residence card (and can still do so until the end of this year).  The Home Office fee for this application is £65.  If the application were successful, you would be issued with a blue document, in which a vignette is usually affixed.  EU nationals did not necessarily need to acquire this document, unlike third country national family members who needed it to prove their rights.

Holding permanent residence gives people the right to leave the United Kingdom for up to two years.  If they return, even once within that period for just a day, the clock is reset and the two-year period recommences.  It is more lenient than indefinite leave to remain. It also means that there will be EU citizens abroad who still hold permanent residence who are able to apply for settled status even if they no longer reside in the UK.

So given that people with permanent residence already have an indefinite right to remain, do they have to apply under the EU Settlement Scheme?  The answer to this is a definite “yes”. They absolutely need to apply and should do so as soon as possible. Permanent residence is an EU status and after 1 January 2021 will be meaningless.  People with permanent residence need to bring themselves within the EU Settlement Scheme which means they need to make an application to the Home Office.

Settled status (or EU Settlement Scheme)

Settled status is the new post-Brexit status granted to EU nationals and their family members who have resided in the United Kingdom for five years. There is no fee for making this application. It is important to understand that this is a pure residence test and does not require an individual to show that they have been exercising Treaty rights. The status granted is in fact indefinite leave to remain as it also falls within the domestic immigration regime. However, it does have the added benefit that you can be outside the United Kingdom for up to five years. 

We are urging all EU nationals and family members to apply before 31 December 2020.  Although the time frame to apply has been extended by the United Kingdom to 30 June 2021, and despite recent draft regulations which have been published, it remains unclear what legal status people who have not applied under the EU Settlement Scheme before the end of this year in the following six months. It remains to be seen whether this legal gap will be rectified before 1 January 2021. 

What happens to those who cannot get settled status because they have not resided in the United Kingdom for five years?  People who can show that they are present in the United Kingdom are granted pre-settled status.  After they can show that they have been in the United Kingdom for five years they are able to apply for settled status. It is not necessary to wait for five years to have passed from the grant of pre -settled status – an application for settled status can be made as soon as somebody has been residing in the United Kingdom for five years.  The important thing to know though is that they need to show continuity of residence. 

In other words, when they come to apply for settled status and look back over the five years, they must be able to show that they have not been out of the United Kingdom for more than 180 days in any year. The Home Office looks at this on a so-called rolling basis. This means they can take any day within that five year period and look back a year and will assess whether somebody has been outside the United Kingdom for 180 days. There is one exception to this rule and that is if there has been a single period of absence which did not exceed 12 months for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting.  It is though very important to understand this provision. 

Our concern is that a number of people will get to the five year point having been out of the United Kingdom for too long to qualify for settled status.  This means that there will be no automatic status for them to revert to as settled status cannot be extended and therefore to remain in the United Kingdom they would need to find a new category of immigration status under domestic law, which for many could be difficult to do.

Naturalising as a British citizen

Becoming a British citizen is in many ways the safest way to remain in the United Kingdom.  British citizens cannot be deported to another country and there are very few ways that British citizenship can be revoked.  However, it also comes with a hefty application fee of £1,330.

There are a few things to be aware of.  To qualify, you need to fulfil residence requirements. If you are not married to a British national, you will need to show that you have had no time restrictions on staying in the United Kingdom for a year (i.e. you have acquired one of the statuses set out above and held it for a period of one year), and looking back over the past five years you cannot have been out of the United Kingdom for more than 450 days, and not more than 90 days within the last year. (If you are married to a British citizen, you only need to show that you have no time restrictions on being in the United Kingdom and that you have been in the UK for three years. The days that you can have been out of the United Kingdom are correspondingly reduced to 270 in the three-year period and remain at 90 days in the past year).

Two requirements for naturalising have recently been clarified by the Home Office. Firstly, the five or three year period must have been lawful residence for any naturalisation applicant. The Home Office has, contrary to the EU Settlement Scheme, stated that during that period, an EU national must, if they were a student or self-sufficient, be able to show comprehensive sickness insurance (as required under EU law).

Equally, the Home Office has a good character requirement for the past ten years. Again, if somebody should have held comprehensive sickness insurance throughout that period and did not, they may fall foul of these requirements. These are very recent amendments, and all naturalisation applications are discretionary, so it remains to be seen how this will be interpreted. 

EU nationals should also check that their own European State allows them to hold dual nationality. Given the United Kingdom’s retreat from the European Union, the last thing you want is to lose your EU passport!

Conclusion

Although the Home Office likes to portray their EU Settlement Scheme as a straightforward and easy scheme, there are issues which individuals need to be mindful of.  If there are any doubts, our recommendation would be to obtain legal advice about your particular situation.

Alison Hunter, Partner, Wesley Gryk Solicitors LLP.

Wesley Gryk Solicitors LLP are specialists in UK immigration and nationality law and are rated as leaders in this area of law by The Legal 500 and Chambers and Partners. We help individuals, families, businesses and organisations find their way through the complexities of the immigration and nationality system. Photo: Alison Hunter by Wesley Gryk Solicitors LLP.