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EU Settlement Scheme - Read the small print

Written by
Nilmini Roelens
Date of Publication:
04 February 2021

The EU Settlement Scheme is being hailed as a great success, with well over 5 million people who have now applied under the scheme and one might be persuaded to consider it as being a good thing. It would have been much better however, if it had not been a constituent scheme, where people who had been living in the country for decades, were forced to "apply to prove their right to live here" or else face the might of the hostile environment.

A declaratory scheme would have been less harmful and hurtful for all those EU nationals who had come to regard this country as their home: our friends and neighbours who now feel betrayed and unwelcome. Many are likely yet to fall through the net.

The JCWI (the Joint Council for the Welfare of Immigrants) reported recently that some care workers, for whom we vigorously clapped in the haze of an earlier lockdown, had not even heard of the EU Settlement Scheme. This does not bode well for the post 30/6/21, post pandemic world when UKVI's enforcement officers reawaken from the Covid-19 induced period of hibernation.

When "the grace period" ends on 30/6/21, a less graceful period may begin as everyone scrambles for hard to come by jobs and we might find ourselves becoming more nationalistic about jobs as well as about jabs.

Those EU nationals who were living in the UK by 11pm on 31/12/20 should continue to apply by 30/6/21 if they have not done so already.

Small print: PSS – Absences and continuous residence

EUSS has hidden difficulties for those granted Pre-Settled Status (PSS). It is hard to read the small print of the Appendix EU since much of it is in in something obscurely called Annex 1 with definitions, eligibility and validity, all a mishmash and rubbed up against one another. It is hard to read even for Immigration lawyers, since this part of the Immigration Rules was evolving unabatedly throughout the period the UK government was negotiating the withdrawal deal, having left the EU and a simplification process was happening elsewhere in the Immigration Rules.

Under the EUSS if you are granted Settled Status (SS) because you have clocked up five years continuous residence you can leave the UK, without losing that settled status, for up to 5 years.

This is very generous compared with the Returning Residents rule for those with Indefinite Leave to Remain (ILR) under the immigration rules who must return within 2 years to maintain ILR. (So that is a good reason for an EU national who already has ILR to secure SS instead under EUSS).

The UKVI website, which encourages EU nationals to apply to the Scheme, has a page which explains "What you'll get" when you apply to the EUSS: https://www.gov.uk/settled-status-eu-citizens-families/what-settled-and…

The UKVI website describes continuous residence clearly thus: "Five years' continuous residence means that for 5 years in a row you've been in the UK, the Channel Islands or the Isle of Man for at least 6 months in any 12month period".

Under the heading of Pre-settled status however, same page contains these seemingly innocuous words:

"If you have pre-settled status, you can spend up to 2 years in a row outside the UK without losing your status. You will need to maintain your continuous residence if you want to qualify for settled status."

How does a lay person work out what continuous residence means in this context? If Immigration lawyers are baffled by Appendix EU, then these words surely need more explanation than this.

The problem is that to qualify for Settlement you need 5 years continuous residence– i.e. unbroken residence in the UK. Six months absence in any 12 month period breaks continuity for qualifying for settled status unless there was an important reason that held you back from returning in which case you are allowed one period of absence of up to 12 months.

If you had Pre settled status (PSS), until 31.12.20 it was possible to return to the UK and apply again under EUSS and secure PSS anew and start the 5 year clock all over again. Even if you had been out of the country for many months or years, by being physically present here by that date, you could qualify for PSS and generate a new 5 year qualifying period and get settlement at the end of that time.

Since 31.12.20 however if you have only PSS you could break your continuous residence for settlement purposes by remaining outside the UK for more than 6 months. Even if you do not lose your PSS and can return to the UK as a PSS holder with up to two years absence you might not qualify for SS.

Remember, you are allowed an absence of one period of up to 12 months "for an important reason", for example, childbirth, pregnancy, study, posting overseas etc – it is for you to convince the SSHD as the list is not exhaustive and "important reason" is not defined. The important reason should include a reason connected with Covid-19 although it is not specified.

If you have broken your continuity for settlement then you cannot now enter as a PSS holder (since 31.12.20) and apply anew for PSS for a new grant of five years. It is not a status you can renew or extend. You can resume your residence and complete the original grant of PSS when you return even after being away for even 18 months (up to 2years). But when that original grant of PSS ends the PSS holder might at that point fall off the cliff-edge in Dover.

They could neither stay (because they can't qualify for settlement having lost continuity of five years as they could not renew PSS with an unbroken period of 5 years) nor go (because they have built up their lives here and put children in schools etc).

Unless you qualify under the Immigration Rules, like the rest of the world, in an immigration category that you might switch to, you have no options.

Those who qualify for frontier worker permits now should apply now if they actually reside elsewhere and come to the UK for work but then return home. But that's a different kettle of fish and it doesn't lead to settlement in the UK. It only provides a safety net, of sorts, to maintain your links in the UK.

As things stand, the UK government has still not announced provisions for people in this precarious PSS situation. This is very unfair since this was not clearly explained to PSS holders who might unwittingly lose their right to quality for settled status believing that they could stay out of the UK for up to two years, without losing their rights to live in the UK in the future.

Small print: Comprehensive Sickness Insurance

The other bit of small print that is now being rubbed in the noses of EU nationals is the question of CSI (Comprehensive Sickness Insurance) and the relatively new requirement in nationality guidance about how this might, bizarrely, impinge on one's good character when one applies for Naturalisation as a British Citizen.

Naturalisation is at the discretion of the Secretary of State, i.e. the good grace of SSHD's caseworkers in the Nationality directorate. This is an issue that should not be left to the discretion of caseworkers. It is an issue that needs certainty. By the time someone applies for nationality it is because the person regards this country as their home and have put down inextricable roots here.

It needs a clear policy change to remove a historical absence of CSI (when many students or self-sufficient people did not even realise they needed it) as being part of the good character requirement. Not having CSI has no bearing on your character. It is not akin to committing acts of terrorism or criminality even if it was a requirement for eligibility at the time.

Many people fail to meet the requirements of a category, usually very innocently, and yet secure a status which the SSHD is then happy to grant. To hold that against one years later as a dual punishment, as part of poor character in a nationality application, then becomes irrational, unreasonable and disproportionate. To allow caseworkers a margin of appreciation at this late stage will lead to arbitrary and unfair decision making that will needlessly block up the remedial systems of review.

Unable to print: Digital only

As for physical proof of status, it looks now as though all nationalities (not just EU nationals) will end up moving to digital only status after 2024. A Biometric Residence Permit (BRP) costs £19.20 only after all. So what is wrong with allowing everyone to apply for one, EU and non-EU nationals alike, rather than denying it to everyone?

In a country (and in a world) short of cash, jobs and jabs, foreigners will no doubt become easy scapegoats and egregious acts of discrimination will no doubt befall our once friends and neighbours as employers refuse to employ and landlords refuse to let and the police hold up anyone that looks vaguely foreign or does not quite sound like a local and cannot easily prove their right to be here.