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Settled Status for EU Citizens – The Draft Agreement

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Almost a year to the day after British Prime Minister, Theresa May triggered Article 50, sending the UK on the path to exit the European Union (EU), the EU released a draft of the Brexit divorce agreement.

Part Two of the Draft Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (the Agreement) sets out the rights of EU nationals currently living in the UK and reciprocal rights for UK nationals living within the EU.

Not only does the Agreement set out the rights for EU citizens living in the UK currently, but also the rights of those arriving during the transition period. It does not state the Immigration policy which will apply to EU nationals after the UK formally leaves the EU.

The best Immigration lawyers in London can assist you with understanding how the new draft agreement outlines Settled Status.

EU Citizens rights before and during the transition

The Agreement confirms that a new residence status entitled Settled Status will be created for EU nationals and their families who have been exercising their Treaty rights in the UK for five or more years.

EU citizens are exercising their treaty rights in another EU State if they are legally:

  • employed
  • self-employed
  • a student
  • economically self-sufficient

Earlier last month, the New Statesman reported that the government had promised a “streamlined, easy to use”, low-cost and digital application process. The Home Office expects “the vast majority of cases” to be granted, with refusals “most likely to be because of serious criminality or if the person is not an EU citizen (or family member) or not resident in the UK”. But the3million, a group focused on protecting EU citizens’ rights and the best Immigration solicitors, estimate that about 10 percent of EU citizens will “fall through the cracks” of the Settled Status – either because they will see their application rejected or because they will not apply at all.

EU citizens who have contributed to the pensions system by paying National Insurance will have the right to benefit from it.

Rights for the family members of EU nationals living in the UK

Not only does the draft agreement provide residency rights for family members of EU nationals already living in the UK, but a select group of family members will also be permitted to join their EU relative in the future.

At present, family members are defined as a spouse or partner, dependent child or grandchild under the age of 21 years, and dependent parent or grandparent. This definition is being carried over in the Agreement.

The Agreement also covers those who have a right to be in the UK under the ‘Zambrano’ principle. Those who fall under the Zambrano principle are non-EU citizens whose presence is required in a Member State to ensure an EU citizen is not deprived of their Treaty rights. An example of this is the non-EU mother of an EU citizen child.

The right to acquire Settled Status

EU nationals who have been lawfully exercising their Treaty rights for five years before 31st December 2020 will be able to apply for Settled Status. Unlike the current EU right of permanent residence, Settled Status cannot be automatically acquired; it must be applied for.

EU nationals who come to the UK before 31st December 2020 but have not lived in the country for five years by that point can apply for ‘pre-Settled Status’. They will be able to stay in the country for the five years required to apply for Settled Status.

Unlike the current requirements for acquiring an EU permanent residence Card, those exercising their Treaty rights as students or economically self-sufficient persons will not need to show they have had Comprehensive Sickness Insurance cover. This requirement has resulted in a high number of refusals, especially for women who have taken a break from the workforce to look after young children. Because they did not know they were required to have Comprehensive Sickness Insurance, many had their applications denied, causing considerable uncertainty and distress.

What if I already have an EU permanent residence Card?

Those who have already acquired an EEA permanent residence Card will not have to pay a further fee to apply for Settled Status. However, those with permanent residence Cards will still have to apply for Settled Status; it will not be automatically given.

In summary

In theory, Settled Status provides EU nationals with a more streamlined, fairer method to remain in the UK after Brexit. For example, it is understood the application form will be far shorter than the current 85-page long monstrosity applicants have to currently wade through to apply for an EU permanent residence Card.

However, there will always be those who fall through the cracks, such as the children of EU nationals whose parents fail to register them. Other vulnerable groups include those with learning disabilities and men and women subject to domestic abuse, who may be denied the opportunity to solidify their residency by their abuser.

There is much to be done to ensure vulnerable EU nationals who have a right to apply for Settled Status or pre-Settled Status have the support and knowledge provided to them by the government. Otherwise, in 50 years’ time, we may end up with a group of people suffering the same fate as those who immigrated with their parents from Commonwealth countries in the 1950s and 60s.

OTS Solicitors is one of the most respected Immigration law firms in London and is a Legal 500 leading firm. It has also been selected by the 2017 Global Excellence Awards as the Most Trusted in Immigration Law: UK. By making an appointment with one of our Immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. Contact us on 0203 959 9123 to speak to one of our Immigration consultants.

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