Brexit immigration update

Written on 25 Jun 2018

On 14 February 2018, the Home Affairs committee of MPs published a report which was critical of the Home Office’s delivery of Brexit, to which government officially responded to on 25 May. Although much of the response falls within the “old news” category, there are certain points that employers and individuals should be aware of.

Permanent residence

Some EU citizens and their families who have already obtained “permanent residence”  under EU law as it exists currently and have a document to prove it.

Individuals who have already been issued a permanent residence document will be able to exchange it free of charge, “subject only to criminality and security checks”.

Where an EU citizen has achieved Permanent Residence (by completing 5 qualifying years’ residence within the UK), they will be able to apply for settled status even if they are not in the UK at the time of Brexit – provided they return to the UK before the end of the transition period (31 December 2020) and have not been absent for a continuous period of 2 years or more.

Settled status

The new EU Exit Settlement Scheme is due to be launched by the end of 2018, the Home Office have stated it will be a simple application with quick turnaround times for decisions. Successful applicants applying under the Scheme will be granted Indefinite Leave to Remain (ILR), with access to the same benefits as they would have applying under the current UK immigration rules. There are further special arrangements: for example, where ILR is granted under the Scheme, this will lapse following 5 years’ absence from the UK, as opposed to the usual 2 years.

Encouragingly, if the initial application under the Scheme is unsuccessful, this will not automatically prejudice the applicant’s right to reside in the UK and will attract a statutory right to appeal any time before the deadline of 30 June 2021. The government has repeated reassurances that the process will be streamline, digital and user friendly.

Applicants will need to provide proof of identity and nationality and, occasionally, proof of residence.

Applicants will need to enrol their “facial image” (a photo of themselves). EU citizens, and non-EU citizens who previously had a Biometric Residence Card issued under the EEA Regulations, will be able to do so by uploading a passport-style photograph digitally. All other applicants will need to go to an application centre to enrol their fingerprints and have their photograph taken.

Partners of EU nationals

EU nationals residing in the UK before 31 December 2020 will be able to have their family members join them, provided those family relations existed before that date. Future partners will need to meet the requirements of the domestic immigration rules

Family members of EU nationals may decide to apply for their new status at the same time as their EU partner. The Home Office seems to be encouraging this, so as to avoid submitting the same evidence twice.

Family members will need to prove, the EU national’s identity and residence in the UK, although “evidence of the EU citizen having been granted status under the scheme will be sufficient evidence of the person’s identity, nationality and continuous residence”.

In addition, they will need to submit evidence of

  1. Their own identity
  2. Their own residence in the UK
  3. Their relationship with the EU citizen

Criminal records

Anyone making an application will be subject to criminality and security checks. Applicants will, in the online (or paper) applications, self-declare their criminal convictions. The Home Office will carry out its own checks. The immigration minister told Parliament on 21 June that self-declaration is for anyone over 18 and Home Office checks for everyone over the age of ten.

Criminal conduct before the end of the Brexit transition (31 December 2020) will be assessed according to the current EU public policy tests for deportation. Conduct after that period will be considered against UK deportation thresholds.

In practice this will mean that applicants with criminal convictions post-dating 31 December 2020 will be more likely to have their applications refused that those with convictions before 31 December 2020.

Comprehensive Sickness Insurance

Much needed clarification was provided in respect of the Comprehensive Sickness Insurance (CSI) cover, in that this will only be required where an EU citizen is travelling to the UK during the transition period, who is not usually resident in the UK. These individuals will need CSI cover depending on their circumstances. This cover can be provided, for example, through a European Health Insurance Card or an S1 form.

Further updates

Beyond Brexit, the government’s response also mentioned a potential restructuring and simplification of the points based system in relation to work visas. With practitioners and the judiciary alike dubious as to how far the government will take any reform, in principle, any simplification to the system is welcome. It is hoped that the government adheres to its aim “to make the rules as easy as possible for applicants and their sponsors to understand and use”.