The front page of yesterday’s Daily Telegraph read ‘EU warning over rights for citizens after Brexit’. What can the problem be? Surely they can all apply for settled status (EUSS) and they’ll be fine.
In fact, many EU citizens had already applied for permanent residency ((EEA PR)) in the UK under EU law.
Home Office (HO) statistics show that 2016-17 saw an unprecedented spike in numbers of people applying for EEA PR in the UK (Fig 1) in order to acquire some legal security.
This blog will examine the little-discussed problems around permanent residency and settled status and the question of cost.
Under current immigration rules, after living in the UK for a continuous period of five years, an EEA national and any family member automatically acquires the right of UK permanent residency (EEA PR) if they are a job seeker, a worker, a self-employed person, a self-sufficient person or a student (the last two with comprehensive sickness insurance).
Under EU/EEA Law, EEA nationals did not have to obtain documentation confirming their right of residence in the UK: it was an automatically acquired right when the requirements were met.
However, as the HO says, while there is no need to apply for permanent residency, it could help to prove right to work status to employers, to prove qualification for certain benefits and to travel in and out of the country with greater ease.
Previously, an EEA national only needed to apply for permanent residency documentation to apply for British citizenship, or to sponsor a partner’s visa application. In 2013, a fee of £65 per person (equating up to £260 for a family of four) was introduced for processing EEA residency documentation.
In light of the Withdrawal Agreement, the new ‘EU Settled Status’ (EUSS) was introduced and with it ‘permanent residence’ came to an end.
Initially, a £65 fee for an EUSS application was planned, and it was intended that those who had already paid for their permanent residency application would not have to pay a further fee for their EUSS application.
A problem arose, though: those families who had applied for EEA PR found they had a document which now ran out on 31 December 2020 (the end of the transition period) – with no reimbursement available for their fees they had already paid.
And despite their ‘permanent resident’ status, they still had to apply for EUSS.
That said, having PR documentation makes the process of applying for EUSS much simpler, and advice agencies we have spoken to have indicated that they have been no difficulties when supporting those with PR to then apply for EUSS – but we are keen to hear from anyone who has experienced issues.
Conversely, for some, EUSS has proved an easier route. One advice agency said that they have been able to ‘’get people through’’ EUSS who would never have been able to meet the stricter requirements of EEA PR applications.
While numbers of people applying for EEA PR have also now dropped (likely linked to EUSS application roll-out) they are still significantly higher than the pre-2016 numbers.
There were 74,541 documents certifying permanent residence and permanent residence cards issued in the year ending September 2019.
These numbers could reflect those who would like to apply for citizenship more quickly than settled status would allow (forgoing the twelve month wait after EUSS was granted).
It could represent those who would like to gain physical evidence of their permanent residency before they then apply for EUSS, or it could simply represent those who do not know they need to apply for EUSS, unaware that the EEA (PR) application no longer means permanent residency.
This does mean that a further £4.8 million has been spent on EEA PR applications by EU nationals in the UK in the period that the fee-exempt EUSS system has been in play.
In November 2019, EUSS application also numbers dropped (see Table 1).
After a sluggish start, we reported a surge in applications in August-October 2019, but this dipped again in November when the first Brexit date of 31 October passed.
It is unknown at this time if the results of the general election and the planned exit from the EU on 31 January will again result in a resurgence in EUSS applications.
It is also unclear if there will be some people with permanent residency in the UK who find themselves without settled status on 31 December 2020 after MPs voted on 7 January to retain the Settlement Scheme as it is and maintain the hard deadline.
This is one of the things which concerns the EU. All EU nationals must apply for EU Settled Status. The question of whether people understand the difference between permanent residency and settled status is therefore crucial.
Table 1 Home Office data of those applying for settled status, Aug – Nov 2019 available here
By Professor Catherine Barnard, senior fellow at The UK in a Changing Europe, Fiona Costello and Sarah Fraser Butlin, University of Cambridge.