UK Government Publishes “Statement of Intent” on Settlement Scheme for EU Workers

July 20, 2018

With the UK’s exit from the European Union slowly but surely approaching, the UK government has recently published its “Statement of Intent” on the new Settlement Scheme for EU nationals living in UK. This follows on from the agreement reached on the “implementation” period, which is to run between “Brexit day” on 29 March 2019 until 31 December 2020. Since the result of the referendum in June 2016, UK employers have lost European workers due to the uncertainty that lies ahead. This Statement of Intent gives employers some clarity on the status of EU nationals that arrive in UK by 31 December 2020.

Currently, EU nationals have the right to travel to and from EU countries in which they are able to work, seek work or study. They are guaranteed this right under The Treaty on the Functioning of the European Union. They can live and work in the UK without needing to obtain a visa. A passport or national identity card showing that the individual is an EU national is all that is required to pass employer right to work checks. These rights extend to both their EU and non EU family members. They can apply for a residence card to show that they can work and live in the UK but there is no legal requirement to do so. After they have exercising treaty rights in the UK for 5 years, they can apply for a permanent residence card which can then lead to UK citizenship.

Following on from talks last March, the government has stated that an ‘implementation period’ will run to 31 December 2020. This means that the rights of EU nationals and their families living in the UK will not change until 1 January 2021. People who are living in the UK by 31 December 2020 will have until 30 June 2021 to make an application under the new EU Settlement Scheme. A phased roll out of the new scheme is scheduled for late 2018 and it is to be fully open by 30 March 2019. From 1 July 2021, all EU nationals and their family members in the UK must hold or have applied for UK immigration status to be here legally. It is important to note that this will not apply to Irish citizens.

The new system will introduce two types of status; settled status and pre-settled status. Settled status effectively replaces the permanent residence status that is currently in place. In most cases, eligibility for settled status will be based on whether an individual has lived in the UK for 5 years. If an individual has not been living in the UK for 5 years they can be granted pre-settled status. Pre-settled status will allow the individual to stay in the UK until they reach the 5 year mark and can apply for settled status. This allows them to work and live in the UK and access the same public funding and services as they do now. This same process will apply to close family members. The government has stated that this will extend to spouses, unmarried partners, dependent children or grandchildren and dependant parents or grandparents. Any individuals who currently have a permanent residence document will be able to exchange this for settled status under the new scheme without having to pay the £65 fee.

The government has made a clear commitment to make the application process for settled status as transparent and simple as possible. It will set up an online application portal that is intended to be extremely streamlined and user-friendly. It remains to be seen whether or not this will be the case but with the current application form containing 85 pages, simplification would be welcome. The Statement of Intent also refers to an “evidential flexibility… enabling decision makers to exercise discretion in favour of the applicant” which again is encouraging language for EU nationals but what it will mean exactly on a practical level remains to be seen.

Most EU nationals will only need to complete three key steps to make an application. Firstly, they will need to prove their identity and nationality. This requires a valid passport or a valid national identity card. Secondly, they will need to declare whether they have any criminal convictions. Finally, they will need to prove that they live in the UK. This is a lower threshold than the current test which requires the EU national to be working, seeking work, studying or self sufficient and could cover stay at home parents and retired individuals that currently might not be able to demonstrate that they are eligible through self sufficiency.

The Home Office has produced a lengthy list of documents that they will accept as evidence of continuous residence in the UK. These include;

  • annual bank statements
  • a P60 for a 12-month period
  • a dated and signed letter from employer which confirms the duration of UK-based employment
  • A residential mortgage statement or tenancy agreement
  • Evidence of an employer making pension contributions.

Therefore, employers should continue to provide support and assistance to EU employees who are concerned about Brexit. They should also identify areas of potential weakness to their business if their EU employees decide to leave the UK and possible solutions to address these issues. Employers could design a toolkit to help with the application process and the gathering of the necessary supporting documentation. The government has issued a statement outlining the application process for EU nationals living in the UK before December 2020. However, there remains a lack of clarity on just how EU nationals arriving after January 2021 will achieve settled status. This should be clarified in the Migration Advisory Commission’s report in the autumn. Until “Brexit day” arrives, employers should continue to keep themselves informed by checking the website and continue to provide support for their current EU employees.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Immigration Law / Employment Team at Cleaver Fulton Rankin for further advice or information.

Nathan Campbell, Solicitor, Immigration Law Team, Cleaver Fulton Rankin, Solicitors.

This article will also be publicised in Legal Island.