EU, European Economic Area (EEA) and Swiss citizens (referred to here collectively as ‘EU citizens’) who want to live in the UK after Brexit will need to apply for a new immigration status. The EU Settlement Scheme (EUSS) has been set up to grant this status. The EUSS may grant either settled or pre-settled status, depending on how long the EU citizen has lived in the UK.
What is the EU Settlement Scheme?
The EUSS is a Home Office scheme to provide status under UK law to EU citizens and their families. EU citizens must apply online to the EUSS – status will not be granted to them automatically. The Conservative Government has been criticised for this approach as it could have passed legislation for a declaratory system that granted status automatically.
Under the EUSS, people who don’t apply will have no immigration status, and critics are concerned about vulnerable people who fail to apply.
How do people apply?
To apply, EU citizens must provide evidence of their identity, length of residence in the UK, and criminal history. They will be provided with digital proof of status. The lack of a physical status document has been criticised in Parliament.
To receive settled status, EU citizens must prove they have lived in the UK for five continuous years. It is permanent and does not expire or need renewal. Pre-settled status lasts for five years. It can be ‘upgraded’ to settled status once the holder can show evidence of five years of continuous UK residence. In August 2019, The Guardian reported that some people are being granted pre-settled status although they have lived in the UK for more than five years, due to difficulties proving residence.
What is the legal basis of the scheme?
The scheme has been implemented in the Government’s immigration rules. These rules are the main source of immigration law in the UK, but are not primary legislation. Under the Withdrawal Agreement (WA), EU citizens’ rights would be protected by the European Union (Withdrawal Agreement) Bill. In a no-deal Brexit scenario, citizens’ rights may not be protected by primary legislation unless steps are taken to do so.
What are the EUSS deadlines?
There are two deadlines for the scheme: the residence deadline and the application deadline. The residence deadline is the date by which an EU citizen will usually need to be living in the UK to be eligible to apply to the EUSS. The application deadline is the date by which an EU citizen who is eligible to apply for the EUSS must do so.
This is complicated by the Brexit outcome. Deadlines vary depending on whether the WA is ratified, or there is a no-deal Brexit. Under the WA, the residence deadline is the end of the transition period, and the application deadline is six months later. Under a no-deal Brexit, the residence deadline is the day the UK leaves the EU, and the application deadline is currently set at 31 December 2020. Some of these dates could change.
Who must apply to the EU Settlement Scheme?
All EU citizens and their families who are living in the UK under EU free movement law and want to continue living in the UK after Brexit must apply to reside lawfully. This includes EU citizens married to British citizens and those who have lived in the UK for many years.
Some EU citizens may already have status under UK immigration law. Generally, EU citizens will have ‘indefinite leave to remain’ if they moved to the UK before it joined the EU in 1973. These individuals do not need to apply to the EUSS to secure their residence but may choose to.
Irish citizens do not need to apply (but can choose to) as their residence is protected by the Common Travel Area. However, their non-Irish and non-British family members will need to apply unless they have status under UK immigration law.
How many people have applied?
At the end of October 2019, the scheme had received 2.5 million applications, 2.3 million of which were from EU or EEA nationals. This slightly overcounts the number of people who have applied, as some have applied for pre-settled status and later for settled status. In 2018, there were around 3.4 million EU or EEA nationals living in the UK who were required to apply (Irish citizens excluded).
Since the scheme opened, around 300,000 people have migrated from the EU to the UK. There were also around 120,000 people who left the UK before the scheme started but who might have been eligible to apply based on historical residence.
Altogether, these figures suggest that roughly 60% of EU and EEA nationals who should apply have applied. Any eligible person who migrates to the UK before the end of 2020 will add to the population that must apply if they intend to remain after that time.
There are no reliable estimates of the number of non-EU/EEA nationals who are eligible to apply.
What will happen to EU citizens who fail to apply?
Those who don’t apply by the relevant deadline may be unlawfully present in the UK, making them vulnerable to removal. The May and Johnson Governments both committed to a ‘flexible’ and ‘reasonable’ approach to those who fail to apply, but did not specify how this will work in practice, raising concerns in Parliament and amongst campaigners. These concerns were heightened when Security Minister Brandon Lewis admitted EU citizens who miss the deadline may face deportation.
- EU Settlement Scheme, House of Commons Library
- ‘Apply to the EU Settlement Scheme (settled and pre-settled status)‘, GOV.UK.
- Charts: Home Office, EU Settlement Scheme monthly statistics
- Map: Home Office, EU Settlement Scheme quarterly statistics, table EUSS
Insights for the new Parliament
This article is part of our series of Insights for the new Parliament. This series covers a range of topics that will take centre stage in UK and international politics in the new Parliament.