As the end of the Brexit Transition Period on 31 December 2020 is looming on the horizon, the UK Government has now made the changes to the Immigration Rules which set out what the situation will be going forward. It has been clear for some time now that, after Brexit is finalised, EU freedom of movement rights will come to an end. In the future, EU nationals will no longer be able to avail of EU law to live and work here, but rather will have to negotiate the much more expensive and difficult process under UK immigration law. This will also apply to the non EU family members of EU citizens.

The new changes set out that, for most eligible applicants, the deadline to apply to the EU Settlement Scheme is 30 June 2021. The consequences of not applying for either pre-settled status or settled status by then will result in that person being in the UK unlawfully.

There is a discretionary power to accept late applications where there are reasonable grounds for the person's failure to meet the deadline and the application has been made within a reasonable time thereafter. However, many groups are still concerned that there will be large numbers of vulnerable individuals that will fail to apply because they are not aware that they have to. It has been claimed that the Government has not learned the necessary lessons from the Windrush scandal and that this situation is likely to cause a problem on an even greater scale in the future.

Indeed, in the Home Office's recent policy equality statement on the scheme they have conceded that the scheme likely discriminates against women, disabled and other groups, but that the discrimination can be justified as a proportionate means of achieving a legitimate aim. Therefore, all eligible individuals would be best advised to apply now before it is too late. The general position on deadlines has been set out below.

Existing residents – EU nationals and their non EU family members that are resident in the UK prior to the end of the year can apply for the scheme up until 30 June 2021. All EU nationals must apply even if they already had a residence permit or permanent residence under the previous regime. However, this does not apply to Irish citizens, EU nationals who have obtained British citizenship, or the small number of EU nationals that have indefinite leave to remain.

EEA citizens coming to UK in 2021 onwards – generally these individuals will be under the new regime. However, if they are joining an EU family member already resident in the UK by 31 December 2021 then they may be able to apply to join them under the scheme. However, in most cases they will need to apply outside of the UK rather than coming here as a visitor and then applying.

Non EU national family members of EU nationals coming to UK in 2021 onwards – Again if the relationship existed prior to 2021, the family member was already resident in the UK and they are coming to the UK to join them then it will be possible to apply for a family permit to do this.

Other important things to note include the fact that:

  • Pre settled status holders can apply for settled status as soon as they have five years of continuous residence in the UK. This means that applications for settled status will continue to be made until 2025 at least.
  • "Surinder Singh" applications (where a British national lives in another EU country with a non EU family member and wants to move back to the UK) can continue to be made up until 29 March 2022 as long as the relationship existed before 31 January 2020 (unless if a child).
  • Non EU family members of Northern Irish citizens should consider whether it would be worthwhile applying under the scheme (since changes on 24 August 2020 have made this possible) before it is too late as this could save a great deal of money compared to continuing on the UK immigration route.
  • Unlike with the previous system, it is no longer a requirement for the individual to be exercising treaty rights so there is no requirement to be working (meaning that certain individuals that were potentially here unlawfully on this technical point now have an amnesty to apply under the settled status scheme).
  • However, if you want to apply for British citizenship at the end of the process and you are not working, then you will need to obtain "comprehensive sickness insurance" as this is still a requirement despite the fact that the individual would have had unrestricted access to the NHS during this time.

It is difficult to understate how big a change the loss of freedom of movement right is and the effects that this can have. For example, a British national seeking to bring their non EU spouse (soon to include EU spouses as well) to settle in the UK with them could easily end up spending over £10,000 over five years in the process. If the EU route can be used, then it is free. Furthermore, there are financial requirements meaning that many British citizens will be unable to sponsor their family members to come to the UK. Essentially this change means that for many low earners in the UK, they simply do not have the option to fall in love with someone from abroad! Overall, despite the Government's efforts to simplify the scheme, there are many instances in which an individual's circumstances can be complicated and legal advice is useful. Time is running out and so eligible individuals should review their status now.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our  Business and Private Immigration team at Cleaver Fulton Rankin for further advice or information.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.