Information provided by Eversheds
Update: September 2017.
The Government has published a formal statement since the immigration presentations o Brexit, which outlines the process it would like to introduce when the UK leaves the European Union. There are important differences between this and the proposed system published by the European Commission. In addition, a document which appers to have come from the Government was leaked to a newspaper in September.
Some important information from the two publication is:
These proposals have not been implemented and may be amended as a result of the current negotiations.
Holding an EEA Permanent Residence card will therefore not guarantee the right to permanent residence in itself, but will remain necessary in order to apply for British nationality.
This is likely to be important but is not yet law and may well be amended in the course of the negotiations.
It is proposed that new immigration rights should be introduced following departure from the EU which will allow citizens of EEA countries to stay in the UK permanently if they have arrived before a designated date and meet the relevant criteria. One proposal is to introduce a new immigration application called "settled status", which all EEA citizens living in the UK, other than Irish citizens, must apply for. There will be changes to the requirements for settled status from teh current system to apply for an EEA Permanent Residence Card: five years continuous residence is likely still to be required, but some other requirments based on EU law (such as the sickness insurance requirement) will be removed.
A leaked document published in The Guardian in September gave some further information about the Government's current thinking. They propose that the new immigration system is introduced in 3 phases which will:
That is an individual decision to make and, since Brexit is likely to take at least 2 years to negotiate, it may be worth waiting to obtain permanent residence. Factors which may influence this decision may include:
This has not yet been determined although, as noted within the presentation, there seems to have been some initial consideration given by UK Visas and Immigration to the likely illegality of obliging anyone who has demonstrated PR status to leave.
Our view is that making this application may well be good evidence of the right to live and work in the UK at a future date after Brexit takes effect. Whilst the terms on which EEA citizens may stay in the UK after this are to be negotiated, we feel this may well help in, for example, crossing borders or showing a future employer the right to work.
Currently if you spend more than 2 years outside of the UK or commit a serious crime, such as an act of terrorism then residency may be revoked. We think it is very unlikely the government would revoke permanent residence more generally as a consequence of the Brexit negotiations.
The requirement in the Immigration Rules for citizens of countries outside the EEA coming back as returning residents also obliges them to “.. seek admission for the purpose of settlement” when coming back to the UK. A person in that situation who tells an immigration officer on arrival that they are staying for a short time just to renew their residence rights might therefore not qualify.
This simply does not happen at the moment, since EEA citizens returning to the UK are asked very few questions. It is early to predict how rigorous immigration controls will be for EEA citizens after Brexit.
We would expect futher rules about the acqusition and loss of settled status to appear within the Immigration Bill to be published prior to withdrawal.
We don’t know this at the moment; it’s one of the things which will be negotiated as part of the UK’s exit from the EU.
Without an alternative agreement, anyone who is in the UK as the dependant of a qualifying person would not be allowed to stay after the person ceases to be qualified (i.e. because the UK has left the EU). The likelihood of this happening is yet to be seen.
The UK currently has a immigration system whereby employers may sponsor workers from overseas to undertake skilled roles in the UK. Manchester Metropolitan University holds such permission to sponsor employees. In many circumstances, it is necessary to show that there are no suitable resident workers available to take the role before this can be offered to someone who needs permission to work in the UK. If sponsoring an employee in the UK, permission to stay can be granted for up to five years after which it may be possible to apply for the right to stay permanently.
It is relatively unlikely that employees from EEA countries currently working in the UK would be obliged to apply for permission to work in this way on Brexit, with some form of transitional arrangement likely regarding existing employees. the precise nature of this will become clearer during the negotiations.
This is a critical question to those considering such applications but, at the moment, not determined. We know the Government has called for a “generous settlement” in respect of those currently in the UK exercising qualifying rights.
Further information in the leaked document indicates a series of options are under consideration as the future system which will allocate permission to work after Brexit. Some form of transitional system will be introduced initially on the UK leaving the EU, whereby permission to work can be obtained on application. After the end of the transitional period, it is anticipated that more restrictive criteria to work in the UK will be imposed.
You will be considered free of immigration restrictions on the earliest date on which you demonstrated five years’ residence in the UK exercising one of the qualifying rights. A person employed at the university since 1st January 2006, for example, would probably be able to demonstrate this by 1st January 2011, so can be considered by UKVI to have been free of conditions since that date, even if the card itself has not been issued until 2016 .
The importance of showing a date of permanent residence earlier than the current one is that applicants for British citizenship must be free of any immigration restriction for one year at the date of the application. A person in the above situation, seeking to make a British nationality application as early as possible, would therefore be advised to establish permanent residence from no later than 2015.
You should evidence each of the five years as a qualifying person in the UK and as resident in respect of the relevant period. This would mean, for example, P60 forms, payslips and bank statements which cover the period starting on 1st January 2006.
We understand this does impact a spouse’s right to stay in the UK. UK Visas and Immigration takes the position that, following a case called McCarthy v United Kingdom (C-434/09), British citizens who have dual nationality may not seek the benefit of rights deriving from EU law unless moving to a different member state.
In reply to a Freedom of Information Act request we have seen about the interpretation of this set of facts, it was suggested that a spouse with a current Residence Card who relies on their status through an EEA national would need to leave the UK on that person becoming British (even if dual nationality is allowed) and re-qualify for entry under the more restrictive terms of the UK’s Immigration Rules. These require, amongst other things, a minimum income to have been earned within the UK in the past 12 months. It leaves applicants in the strange situation that their immigration status is jeopardised by their partner becoming a British citizen.
This seems very unlikely to be necessary. Irish citizens have had free movement rights in the UK for many years and these are protected by different law to that applicable for other EU citizens. The leaked document specifically advises it will be unnecessary for Irish citizens to make applications to confirm their right to live in the UK.
Yes, this has been a requirement since November 2015.
The only exception to this is those who held indefinite leave to remain in the UK before their home country joined the EEA (such as, for example, a Lithuanian citizen who acquired indefinite leave to remain in the UK in 2002). There is no need for a permanent residence card to be obtained in this situation unless the right to remain permanently has subsequently been lost by long-term residence outside the UK.
We would suggest making an application on the basis that you are a qualified person or as a permanent resident, having been qualified in the UK for five years.
Being married to a British citizen does not provide an alternative immigration application which is likely to be useful if you are an EEA citizen who works in the UK.
Children do not automatically become British by virtue of birth in the UK. Whilst this might be relevant to the immigration status of their parents in some circumstances, it will generally still be appropriate to seek confirmation of the right to residence on the basis of being a qualified person, permanent resident or dependant.
Most children born in the UK are very likely to have the same immigration status as their parents. Those whose parents have lived in the UK for at least five years at the time of their birth may qualify for British citizenship automatically.
The rules regarding this are slightly complex and depend on the date on which a child has been born in the UK:
UK before they were born;
There are detailed rules in place about children obtaining of British citizenship by application if born outside the UK or otherwise not matching a category above. It is unusual for a child to be registered as a British citizen if at least one of their parents is not currently British or applying at the same time, but there is discretion for caseworkers to allow this.
The benefit of having dual citizenship is that British citizenship is only withdrawn in unusual circumstances. Whatever the outcome of the negotiations, British citizens will clearly be allowed to remain in the UK. If you’re able to obtain this and keep your citizenship of origin, that seems a good resolution to the problem.
Whether the benefits of holding British citizenship are justified will be a question for each
individual applicant to consider. Things which we would suggest should be borne in mind are:
These are special circumstances in which individuals who were unable to exercise one of the necessary rights may still be considered “qualified” for the purpose of this type of application.
We spoke in a seminar about how this may apply to a person who had suffered an accident in the course of the five years and needed to recover for one year. Article 7(3) of the Citizens’ Directive 2004/38 does set out some circumstances in which those temporarily unable to work may still retain this status. Registration to look for work or training during the relevant period does seem a pre-condition of such an application.
There are other situations in which a retained right of residence can arise. If this affects you, you are recommended to seek further legal advice from an immigraton law specialist.
There is no need to do this if applying on-line. The form simply asks for details of any absences from the UK over six months in any year and, if there are none, you will receive no further questions about this.
The question about absences does still appear on the paper copy of the EEA PR application form and you should list these as accurately as you can. Travel to a Schengen country will show no evidence in an EEA passport and it may prove genuinely impossible to find this information. It is reasonable in this situation to give your best estimate of the days on which you were absent and inform UKVI that, whilst it is accurate to the best of your recollection, it may not be recorded 100% correctly. A suitable formula to add to the form might be as follows:
“Information in respect of my travel since I first arrived in the United Kingdom is accurate to the best of my knowledge. I have not previously been keeping records of this, however, since I have had no need to do so and it has not been possible to fully re-construct this from my immigration stamps. Any errors or omissions are for this reason only and are inadvertent"
UK Visas and Immigration advise than, in the course of five years’ qualification, they also have discretion to allow for one absence of between six and twelve month if it was for an “important reason”. Study, vocational training or overseas posting are stated as being examples of such important reasons, although their guidance does not comment on this further.
It would appear that activity such as a sabbatical or overseas work might potentially qualify within this category.
Each of the EEA countries has domestic immigration law which is applied to all non-citizens seeking to live and work there. Whilst citizens of other EEA countries, such as the UK, retain a right to do so at the moment without prior permission, that is likely to change in the event of Brexit. A form of work permit arrangement exists in each EEA country which is intended to protect access to the labour market for its own citizens and those of other EEA countries.
It is likely that some form of transitional arrangements will be in place for British citizens
who have exercised these rights in an EEA country before Brexit. What the arrangements will be is one of the many items yet to be agreed in the course of Brexit negotiations.
A development which is likely to help British workers in EEA countries seeking the right to remain after the date of Brexit is the implementation of what is known as the “Blue Card Directive”. These laws are intended to help highly educated individuals to work in the relevant countries if they possess suitable qualifications and a job offer with a relatively high salary and means there is no need to advertise such roles to local workers. In Germany, for example, this process applies to those who hold degrees and have a job offer with a salary above EUR 49,600, in France the salary required is higher (EUR 54,000) whilst, in Italy and Spain, this is significantly less (salaries of EUR 25,000 and EUR 26,000 respectively are necessary). Possession of such a Blue Card allows employees to live in the relevant country and, ultimately, to settle there permanently.
No. It was possible to do this for applications prior to 1st February 2017, but a legal change on that day means it is necessary to complete either the on-line application form or paper form.
We recommend completing the on-line form if at all possible, since this is more straightforward and quicker to resolve. That is not available in respect of two groups of people:
The on-line EEA QP or PR form is the only available option is seeking to apply using the Passport Return Service. This is an on-line process which results in a dynamic application form being generated. The application form should therefore be easier to use than it’s paper counterpart;
It is possible to make applications for EEA Qualified Person (QP) or EEA Permanent Resident (PR) on-line, then bring the documents to a local register office , with the passport being returned to applicants on the same day. The service currently requires the on-line application form to be used and is available only for EEA citizens. The appointment must be made within five days of applying on-line. It is advisable to have secured an appointment with the Passport Return Service before making the on-line application.
In Greater Manchester, currently three local authorities take part; Manchester, Trafford and Oldham. Eversheds understand that a small charge only will be applied to using this service and that the service is popular. Oldham offers a walk-in service. Manchester is busier and booking in advance of the appointment is required.
If you require a decision quickly regarding your application, you may be eligible to apply through a Premium Service Centre for a fee of £500. The above link provides more information and it is possible to check eligibility for the service. Physical attendance at a UK Visas and Immigration office is necessary.
Eversheds' understanding is that there has been a long delay in getting such appointments since the referendum outcome, but this may be eased by the passport return service.
Eversheds has found that this varies, although they have seen recent applications processed in around 2 months.
They understand there are around 120,000 applications awaiting processing and this is likely to increase delays. UK Visas and Immigration is actively seeking to stream-line the process, in anticipation of a large number of such applications in the next two years.
If your passport or travel document is likely to expire within a year, it’s advisable that this is renewed before submitting a postal application.
Should you apply by post and are obliged to submit a document to confirm your nationality, we would suggest you prepare yourself for the possibility that this may not be returned to you in good time. Sending either a national identity card or a duplicate passport (i.e. an original second passport issued to you by your Government) may assist with this.
The on-line application form suggests it is not necessary and that, other than P60 forms together with evidence of employment since that date, no further documentation is necessary.
The UK Visas and Immigration guidance, however, does still state the documents as necessary. You should assume the latter is correct in the absence of official clarification from UKVI.
The relevant documentation should come from at least five different sources to show your residential address during the five year period. It is advised to include at least two documents for each year of residence being stated.
It can be challenging to find the documentation, but should be possible in most circumstances. As an example, if seeking to show you have lived in the UK between 1st January 2010 and 31st December 2015, documentation which would help to show this could include:
We have heard reports that UK Visas and Immigration may refuse applications if the relevant passport or national identity card is not valid for the duration of the five qualifying years in question. Whilst that does not appear as a mandatory document, we would suggest this is included if possible.
The official policy in respect of documentation may be relaxed in the next few weeks (writing as at March 2017) and the guidance will be updated if this does happen.
Yes, you should submit original documentation only in respect of these applications. There are very limited circumstances in which anything other than this can be accepted.
You should note in particular that bank statements and bills received on-line need to be certified as genuine documents by the issuer. In respect of bank statements, it may prove more straightforward to obtain original copies of this.
Payslips and P60 documents can be certified as accurate by the University’s HR team.
It definitely is necessary for an EEA citizen to hold comprehensive sickness insurance in this situation. We understand that an EHIC card issued within the United Kingdom is deemed not suitable for this purpose; the card must have been issued overseas.
One effective way to do so, if an EHIC was not held, is to seek confirmation from the home country via forms S1, S2 or S3 that this entitlement was in fact held at the relevant time. That may not be practical for some applicants who may have difficulty in showing the requirements as having been met.
We heard in the course of presentations that the government of Romania is reluctant to issue such documents, although a former civil servant in Romania who attended advised she knew of a way to obtain this. We would suggest the best evidence of suitable coverage would be the information to submit in such a case.
It has been stated within the Government's documentation concerning the proposed immigration system after Brexit that the requirement to hold comprehensive sickness insurance is likely to be abolished in applications for settled status and the latter may be available from autumn 2018. Should it not be possible to resolve this issue, it may be better to make an application for settled status from that date.
No, any policy which confirms the level of comprehensive cover required in the UK is sufficient.
The UK Visas and Immigration guidance does specify that travel insurance or cash-back health schemes are not appropriate for this purpose and we would suggest a scheme which offers limited access to private healthcare would not be suitable either.
This would need to be assessed in relation to each individual application and it may be appropriate to obtain advice and review of the application before it is submitted.
It is not possible to qualify for permanent residence with gaps in the basis of qualifying during the five years’ of residence necessary (although absences from the UK are permitted). Any periods in which the qualification is not clear should be explained within the application.
The evidential standard to establish residence in the UK as either a jobseeker or a self-sufficient person is a relatively high one and we would suggest applicants should not presume it would be considered the criteria to be obviously met from a small number of documents. We understand that it is intended that job-seeking will not be one of the qualifiying activities which permits settled status.
UK Visas and Immigration does state that work without registration under the WRS, when that was necessary, may not count towards the qualifying period.
We think this is very unlikely to present a difficulty in practice. The Worker Registration Scheme ended more than five years’ ago and, whilst those living and working in the UK were subject to its requirements at that time, it seems very unlikely to have an impact on whether you can be considered a qualified person or permanent resident now.
You may not need to evidence healthcare if you have been in employment whilst studying.
Work needs to be “genuine and effective” for qualifying status as a worker to be established. The interpretation of that phrase is not consistent by the Court of Justice of the European Union, but there is no specific minimum hourly requirement defined in the directive if the work is genuinely undertaken. We understand UK Visas and Immigration generally do accept that work is genuine and effective if the payment is such that national insurance contributions are due (currently £155 per week); if less than that , it will be necessary to explain to UKVI that the relevant income in fact does meet the requirements.
We would suggest further advice is sought if your work has been part-time and you are not able to show coverage through comprehensive sickness insurance during this period.
This is extensive and listed in Annex B of this document (from page 15 to 18) from UK Visas and Immigration. You should send:
A significant amount of evidence may be needed to show your self-employment. We would suggest this may be an application which it would be helpful to obtain legal advice if the information is not readily available.
This is not clear at the moment, although this seems to be an active part of the negotiations. Both the Government and the European Commission have consistently advised they regard immigration as being one of the principal issues on which they would like to reach agreement. It is not known at present how close the parties are to agreement, although there are important differences in the policy statements issued by each to date.
Whilst the two documents which have been published in 2017 do provide more information about what the Government may wish to introduce, they do not represent definite statements of policy. It is possible that they may be amended, either as a result of political lobbying within the UK as part of the ongoign negotiations the British Government has with the European Union.
Information from KPMG, including a flow chart to help you assess your rights in relation to UK permanent residency.