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The end of free movement for European Economic Area (EEA) citizens already living in the UK – what does it mean for you and what are the latest developments?

25.09.2019 Employment, pensions & immigration, Immigration

Marta Mendiondo

Marta Mendiondo Immigration Consultant

The UK Government has recently announced guidance around the end of free movement for European Economic Area (EEA) citizens already living in the UK, or arriving after the date of Brexit. Based on the UK leaving the EU on 31st October with no deal, we have provided information and recommendations for EEA citizens who need to retain their right to live and work in the UK.

Firstly, all EEA nationals living in the UK prior to 31 October 2019 must make an application under the EU Settlement Scheme by 31 December 2020. The length of their UK residence will determine whether they qualify for settled or pre-settled status. Subject to criminality checks, every EEA citizen (and their direct family members) who has lived in the UK for five consecutive years will be eligible for settled status. If they don’t meet the residence requirement, applicants will be granted pre-settled status for a period of five years. Pre-settled status will have to be upgraded to settled status when the applicant has completed five years of residence in the UK, and prior to their leave expiring. The only requirement is to reside in the UK for at least six months in every twelve-month period. There is no need to prove activities, income or medical insurance.

There will be no obligation for EEA citizens to prove they hold pre-settled or settled status until 1 January 2021. Their EEA passport or national ID card will suffice to confirm their legal status until then. 
 
Minor children must also apply. They can qualify individually, or obtain their status in line with their parents. If either of the child’s parents hold settled status at the time of application, there will be no requirement to show previous residence in the UK for the child.
 
The only EEA citizens exempt from applying are Irish citizens and EEA citizens who were previously granted Indefinite Leave to Remain.  This would normally have been granted in the form of a passport stamp. In this scenario, we recommend applying under the EU settlement scheme as it is likely there will be no record of that person’s file in the Home Office, and if the passport is lost or misplaced, the person will lose proof of their legal status in the UK. EEA nationals who obtained a permanent residence card under the EEA Regulations will also have to apply unless they have become a British national by the end of 2020.
  
For European citizens arriving after 31 October 2019, there will not be immediate checks on their status. New arrivals will be able to live and work in the UK, but will need to apply for “European Temporary Leave to Remain” by 31 December 2020, providing them a period of   36 months. If they wish to stay in the UK beyond this period, they will have to make a valid application under a different immigration route.. 
 
Direct family members of EU citizens with settled or pre-settled status not residing in the UK, will be able to join them until 29 March 2022, providing the relationship existed by 31 December 2020. This leaves unmarried partners in a precarious position if they have not moved to the UK prior to 31 October. Children up to 21 years of age, spouses, parents and grandparents are included in the definition of direct family members. More generous provisions apply to family members of European Free Trade Association (EFTA) countries and Swiss nationals as they will be able to join them at any point in the future provided their relationship started prior to the Brexit date and it is still subsisting at the time of joining them.
 
Businesses can continue operating with the same “right to work” checks for their staff as they do now until 31 December 2020. From 1 January 2021, the domestic Immigration Rules will apply, and employers will have to confirm  their European employees have status under the EU Settlement Scheme. There is no obligation for immediate action, but in the current climate we encourage both staff and sponsors to take the necessary steps to ensure their staff retain the right to work in the UK as soon as possible. Frontier workers, or EEA citizens who have left the UK but lived there for a consecutive five-year period can benefit from the provisions above in certain circumstances. We can provide specific advice tailored to the person’s circumstances, assist with the preparation and submission of applications, and organise workshops to increase awareness amongst staff. 
 
The information in this article is valid at the time of writing it, but may change soon, such is the uncertainty in relation to Brexit. We, therefore, recommend checking the latest developments with an immigration expert in relation to your company’s needs or the applicant’s specific circumstances. 

If you would like to get in touch with the immigration team, contact: Marta Mendiondo

Article authors:

Marta Mendiondo