07/02/2019 Brexit - EU Settlement Scheme | Carter Thomas Solicitors | UK Immigration Advice

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Brexit Immigration Analysis

To ensure that you are kept up to
date with the very latest
On 29 March 2017, following a referendum that was held on 23 June 2016, the
developments, our analysis will be
UK gave formal noti cation in accordance with Article 50 of the Treaty on
updated regularly.
European Union of its intention to withdraw from the European Union. The
UK is due to leave the EU on Friday 29 March 2019.

The terms of the UK’s departure from the EU are yet to be nalised. A draft
Withdrawal Agreement was published on 14 November 2018. The draft was
approved by the other 27 EU member states on 25 November 2018 but, on 15
January 2019, MPs in the UK rejected the terms of the agreement. Further If you require legal assistance or
negotiations are therefore taking place. The risk of the UK leaving the EU without would just like to discuss your
an agreement having been reached cannot be ruled out and there is also the situation with one of our experts on a
potential for the departure date to be extended. no-obligation basis, please call us or
send us an email to
You can nd our articles covering key stages and developments in the info@carterthomas.co.uk.
negotiations, along with other matters of interest to EU citizens, here. We have set
out below up to date practical information for EU citizens and their family
members, taking into account the latest developments from the EU and UK. This
information will be updated as new practical details are released.

The current position for EU citizens and their family members

Whilst the UK remains a member of the EU, EU citizens and their non-EU
qualifying family members are able to enter the UK freely unless, in very rare
circumstances, a decision is taken to exclude them on public policy, public security
or public health grounds. Such arrangements may also continue during a
transition period if there is an agreement between the UK and EU.

Pursuant to free movement law, namely Directive 2004/38/EC (commonly referred

to as the ‘Citizens’ Directive’ or ‘Free Movement Directive’), EU citizens and their
qualifying family members are lawfully entitled to live in any EU member state,
including the UK, for more than three months providing the EU citizen is
exercising Treaty Rights. In brief, exercising Treaty Rights means that they must
be:

working;
self-employed;
self-su cient*; or
studying*.

EU citizens can also bene t from a range of other rights that are separate to free
movement.

In reality, checks that EU citizens are exercising Treaty Rights (or any other rights)
only generally happen in the UK if the EU citizen or a family member makes an
application, under EU law, for a document con rming their status, including a
document to con rm that they are a permanent resident of the UK.

Under current EU law, an EU citizen who has completed a period of at least ve

years in the UK exercising Treaty Rights automatically becomes a permanent
resident of the UK, as do their qualifying family members. They must obtain a
document to demonstrate this if they wish to apply to naturalise as a British
citizen.

Documents can be applied for to con rm the status of the EU citizen and their
qualifying family members who live in the UK. However, historically many people
have not made such applications unless they have intended to apply to naturalise
as a British citizen or a family member is an ‘extended family member’ and is
therefore required to hold such a document.

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07/02/2019 Brexit - EU Settlement Scheme | Carter Thomas Solicitors | UK Immigration Advice
*If an application is made under EU law, the Home O ce will require evidence
that students and self-su cient persons have held comprehensive sickness
insurance, as required under EU law, during any period to be regarded as
exercising Treaty Rights. However, it is important to note that this only applies to
an application for a document under EU law. The UK has stated that the
comprehensive sickness insurance requirement is not a requirement under the
EU Settlement Scheme, which we cover below.

In light of Brexit, should an application for a regular EU document be made

now?
In relation to the non-EU family members of EU citizens who wish to move to the
UK to live with their EU relative now, we strongly advise them to apply for a
document known as a Family Permit before they travel to the UK. Possessing such
a document ensures ease of entry to the UK at the airport or port.

It is also important to remember that those who are extended family members
must have a valid Family Permit or Residence Card throughout their stay in the
UK.

At the moment, unless it is absolutely necessary, the Home O ce is discouraging

EU citizens and their direct family members who are already living in the UK from
making applications for documents evidencing their status.

We do advise, however, that EU citizens and their family members who wish to
naturalise as British citizens and those who have complex cases continue to
submit applications for evidence of their status. We are nding that, on the whole,
applications are being processed e ciently by the Home O ce although time-
frames can sometimes uctuate signi cantly.

There are many scenarios that may be complex and may therefore require more
detailed consideration. For example, we regularly advise EU citizens who wish to
bring their elderly parents, adult children or unmarried partners to the UK.

We also assist those who wish to enforce a derivative right of residence and/or a
right otherwise established by case-law (for example Surinder Singh, Teixeira,
Chen and Zambrano).

We are also often asked to provide advice and assistance where an application for
a Family Permit, residence or permanent residence document or any other type of
visa has been made but has been refused. In such scenarios, we will review the
case and provide advice on whether or not an appeal is the best course to take or
if a fresh application would be a quicker and a more cost-e ective option.

What is changing from an immigration perspective?

As explained above, as matters presently stand the UK is set to leave the EU on 29
March 2019. If an agreement is reached with the EU that contains the same
provisions on citizens’ rights as the Withdrawal Agreement, it is expected that
there will be a transition period ending on 31 December 2020. As such, if an
agreement is reached, the vast majority of EU and UK citizens would continue to
be able to live, work and study in the UK and EU members states in much the
same way as now until at least December 2020.

The UK Government has also opened the EU Settlement Scheme for EU nationals.
This operates under UK law. It will not be mandatory for EU nationals to make an
application under the scheme whilst the UK remains a member of the EU and, in
the event an agreement is reached, until at least the end of the transition period.
The UK Government has proposed that EU citizens and their family members who
already live in the UK, or who move to the UK before 31 December 2020, will have
until 30 June 2021 to apply for a document under the EU Settlement Scheme.

Examples of various scenarios can be found here.

The EU Settlement Scheme – for EU citizens and family members who are
currently living in the UK or who arrive before 29 March 2019
The EU Settlement Scheme opened on a limited trial basis in August 2018. A more
extensive trial, open to members of the public who meet the requirements for
entry into it, commenced on 21 January 2019. It is envisaged that the scheme will
be fully open by March 2019.

The EU Settlement Scheme enables EU citizens and their family members who
have lived in the UK for at least ve years, by the time the application is made, to

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07/02/2019 Brexit - EU Settlement Scheme | Carter Thomas Solicitors | UK Immigration Advice
obtain inde nite leave to remain (ILR), also referred to as settled status, under UK
law. Those who have not lived in the UK for ve years will obtain limited leave to
remain, also referred to as pre-settled status. The provisions for ILR or limited
leave to remain are contained in Appendix EU of the Immigration Rules. The
guidance for Home O ce caseworkers to follow when deciding an application can
be found here.

Applications are made via an online registration process and further details are
set out here.

The Government has stated that it will not impose the comprehensive sickness
insurance requirement in relation to the new application process. This means that,
for example, an EU citizen who has lived in the UK for a ve-year period, during
which any time was spent as a self-su cient person or a student, will be able to
obtain ILR even if they have never held comprehensive sickness insurance.

EU citizens and family members who move to the UK between 29 March 2019
and 31 December 2020
If an agreement is reached that contains the same provisions on citizens’ rights as
the Withdrawal Agreement, then EU citizens and their family members who move
to the UK between 29 March 2019 and 31 December 2020 would be able to qualify
for ILR under the EU Settlement Scheme once they have lived in the UK for a
period of ve years.

Close family members joining an EU citizen in the UK after 31 December 2020

If an agreement is reached that contains the same provisions on citizens’ rights as
the Withdrawal Agreement, under the EU Settlement Scheme, close family
members (spouses, civil and unmarried partners, dependent children and
grandchildren and dependent parents and grandparents) would be able to join EU
citizens living in the UK after 31 December 2020, where the relationship existed on
that date.

EU citizens and their family members who subsequently move to the UK

A new immigration system is being designed which will cover those who
subsequently move to the UK. Some limited information was provided in
December in a White Paper.

What happens if an agreement between the EU and UK cannot be reached

before the UK leaves the EU?
On 6 December 2018 the UK Government published a Policy Paper dealing with
this issue. Further information was then published on 28 January 2019.

Some of the above measures would be changed in the event of a no-deal and we
have provided further information here.

How we can assist

We are receiving calls and emails from large numbers of EU citizens and their
family members and we understand that this is a worrying time for many people.

The Legal 500 says that our team provides ‘that extra bit of listening, care and
explanation that engenders the client’s trust and makes them feel comfortable’.
Our immigration experts are always willing to provide initial advice in a telephone
call or via email at no cost to help you to identify the best steps to take.

If making an application is the best option, we will usually be able to prepare the
application on a xed fee basis. If your situation is complex, we will analyse your
situation and provide you with legal advice in a cost-e ective way working to an
agreed budget.

We also assist businesses and education providers with their Brexit preparation
strategies by:

running workshops and seminars for HR sta and EEA/EU employees;

advising on the organisation’s workforce/student data and prevention of
illegal working/right to study strategies and providing feedback and support;
providing assistance with the preparation of relevant applications for
individual employees and their family members;
providing advice where necessary on alternative immigration options; and
o ering tailored services to meet speci c requirements.

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07/02/2019
IMMIGRATION SOLICITORS
Carter Thomas is a specialist
immigration law rm based in
London and She eld.
We solve important, complex and
urgent immigration issues for
education providers, businesses and
individuals.
TOP RANKED
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Brexit - EU Settlement Scheme | Carter Thomas Solicitors | UK Immigration Advice
We are ranked by Chambers and Partners, The Legal 500, Who’s Who Legal and
other leading publications for our high-quality immigration law services. The team
also work with the world-renowned EU Rights Clinic in Brussels providing legal
advice on complex EU law issues.
Our immigration experts sit on numerous working groups and committees and
meet regularly with Home O ce o cials who are developing the new processes
for EU citizens. If you require legal assistance or would just like to discuss your
situation with one of our experts on a no-obligation basis, please email us at
info@carterthomas.co.uk or call us.
The latest information from the UK Government can be found here.
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