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EU Settled Status scheme – what to expect if you miss the deadline

Written by
Helena Sheizon, Kadmos Consultants
Date of Publication:
07 June 2021

If you are an EU national resident in the UK before Brexit you can protect your right of residence. All you need to do is make an application for settled status or pre-settled status. This application is made online and, if you avoid technical difficulties, will take only a few minutes to complete. The deadline is 30 June 2021.

As with any deadline, inevitably, someone will miss it.

Let us imagine a Giovanna or Giovanni, who came to the UK from Italy and have lived here for years and years, but never bothered to apply for British citizenship, have not heard of Brexit, and missed the deadline to apply for settled status. Let us imagine that Giovanna or Giovanni work for a digital agency, or a bookshop, or a restaurant, have a partner who is a British citizen, and a couple of kids. What happens?

The right to work

All persons ordinarily resident in the UK have the right to work. Those who come to the UK from overseas and are subject to immigration control may or may not be granted this right. But when Giovanni or Giovanna came to the UK exercising free movement rights within the EU they were not subject to immigration control and were not granted a right to work. It is at least questionable if the right that was not granted in the first instance could be alienable – or taken away. Thus, if our friend continues to work for their digital agency, bookshop or restaurant, their position would be somewhat uncertain but not indefensible.

What about their employer? Would there be any uncertainty in their position? As long as Giovanni started working for them before 31 December 2020, and they have taken a copy of their Italian passport and kept it on file, they don't need to repeat the right to work check and will not be held responsible.

So far, so good.

But what if our friends decide to change employment? Oh no, I wouldn't recommend this. No employer will hire them without the right to work check, and this is bound to fail because the right to work checks are linked to the EU Settlement Scheme database.

Setting up their own business? Yes, I think that would be possible. As long as they don't have to leave the UK, for business or otherwise.

The right of residence

I am not aware of any legal provisions that would outlaw our friends. Missing the 30 June deadline is not an immigration offence, and they have not committed one having come to the UK at a time when they were not subject to immigration control. If the Immigration police asked my view, I would say that they cannot be forcefully removed from the UK.

But what if they go on holiday? Oh no, no, Giovanni, Giovanna, don't! I mean, go to Cornwall, go to Scotland. But don't leave the island. You will not come back. Maybe as visitors, but I wouldn't be surprised if you are not admitted as visitors because the ties you have with the UK suggest that the purpose of coming here may be more than a visit.

So stay put! Don't travel.

However, if you think about it and if you remember that our Giovannis have a British partner – there may be a way to bring them back from their holiday overseas. What they need to do is apply for a spouse visa! It takes about three weeks if they pay for express service, or three months otherwise and it is somewhat costly – especially if you look at it as a penalty for missing the deadline – but at least it's not impossible, provided their partner's income is above the threshold to meet the financial requirement.

Would it make a difference that they have a couple of kids who are British citizens? No, not really. At least, not unless, the British partner disappears from the scene or becomes incapable of providing the children with care, but I don't want to get all gloomy. Let's stick to the plan that Giovanni or Giovanna do not go abroad and enjoy our beautiful wave girt land, and maybe a band of Italian days will come from the South and the weather will smile on Albion.

And finally, the NHS

Here we are entering a truly grey area. The NHS is available free of charge to persons habitually resident in the UK but whether our friends will be accepted as habitually resident without confirmation of their settled status remains to be seen. Many lawyers will be keen to argue their case and our friends will have to find a good one.

And as an afterthought, what if they have a child born in the UK after 30 June 2021? Arguably, the child will be a British citizen if Giovanni or Giovanna can show that they were in continuous employment for a five year period before 31 December 2020. But what if…? I don't really want to finish this sentence. I will leave it for another day …