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Ahead of the latest round of BREXIT negotiations, the Government announced more details about how EEA citizens will be treated after 29 March 2019.  This announcement came by way of a technical note. In this post we shall set out key highlights from the note.

Streamlined and low cost process

As we already know, all EEA nationals (and their family members) who wish to continue living in the UK post-BREXIT will need to make an application to the Home Office for immigration status under domestic law.  The good news is that the Government have now made clear that this process will be streamlined, user friendly and digital.  The Home Office intend to rely on data held within other Government Departments in order to reduce the burden on applications; for example, employment records held by HMRC will be checked rather than applicants having to provide evidence of their employment.

The process for those who hold a valid EEA Permanent Residence document will be even easier.  It will be a case of simply exchanging the Permanent Residence Card for a new settled status document.  The Home Office will not be re-visiting whether the person is eligible for Permanent Residence.

The cost of the online application will be less than the cost of a British passport (the current fee for an adult passport is £72.50).  The fee will be even lower for those who already have a Permanent Residence document.

Immigration status

For those who will not already hold a valid EEA Permanent Residence Document, there are two possible successful outcomes to the streamlined application procedure.  Firstly, the Home Office may recognise that they have acquired a right of permanent residence and will therefore be granted a settled status document.  For those who were legally resident, but had not yet acquired permanent residence, they will be given temporary status for a limited period.  This will allow the person to continue to live in the UK until they have reached five continuous years residence, at which point they will then be able to apply for settled status.

The key to succeeding in an application for either temporary status or settled status will be legal residence in the UK at the relevant date.

Pragmatic Approach

The intention of the Government seems to be to take a pragmatic and flexible approach to applications.  Examples given in the technical tote include:

  • Evidential flexibility will be applied, for example, in cases where a document has simply been omitted, applicants will be given an opportunity to provide further evidence;
  • The Home Office will not apply a genuine and effective work test in order to decide whether someone is genuinely a worker;
  • The Home Office will not check whether a person has held Comprehensive Sickness Insurance for those who are self-sufficient or students;
  • If the Home Office are satisfied that a person has been continuously residing for 5 years then they will not ask for applicants to account for every single trip that they have made outside the UK;
  • A proportionate approach will be taken to people who miss the 2 year deadline to submit an application following BREXIT.  If the deadline is missed then the Home Office will consider the reasons for this when deciding whether to exercise discretion and allow a late application.

Those with Criminal Convictions

In respect of deportation for those who have been involved in criminality, the Home Office will continue to operate the current system for those who commit offences pre-BREXIT. A person’s past criminality will not be re-visited where the Home Office have already been aware of the criminal offence and a public policy assessment found that deportation or removal was inappropriate.

Where offences are committed post-BREXIT, the Home Office will consider deportation in terms of the current Immigration Rules for non-EEA foreign national offenders, in terms of the automatic deportation regime.  The Home Office will also look at offences committed pre- BREXIT in order to decide whether deportation is appropriate.

Conclusion

It is crucial that EEA nationals and their family members ensure that they will be residing legally in the UK when the UK leaves the EU.  Those who hold a Permanent Residence document pre-exit will be treated more favourably than those who do not.  EEA nationals and their family members who will have been residing in the UK for a period of 5 years prior to 29 March 2019 should seriously consider whether they are eligible to make an application for Permanent Residence. 

Please do not hesitate to contact our teams in our Edinburgh and Glasgow offices for advice on any of the issues raised in this blog.