How to protect your business after Brexit
Mandie Sewa | 20.02.2019
05.01.2018 Mandie Sewa
The UK government and European Commission reached a deal to finalise the rights of EU nationals in the UK in November last year. All EU citizens will need to apply to the Home Office for ‘Settled Status’. The cut off date for doing this will be 29 March 2021. This new status will not be granted automatically. All EU nationals, including those with Permanent Residence, will have to make an application to obtain it.
EU citizens who have lived in the UK lawfully for 5 years before the cut off date and continue to be resident in the UK will be entitled to “Settled Status”. People arriving the EU before the cut off date but who have not lived in the UK for 5 years will be allowed to stay, until they reach 5 years, after which they will need to apply for settled status. During this 5 year period they will be granted ‘Temporary Status’.
This guide is intended to answer many of the questions that we have been asked by our existing and potential clients. It covers questions including:
Currently rights under EU law are automatic. This means individuals do not have to apply for documents to confirm their right to live in the UK. EU citizens will not have any rights under the new agreement, unless they have been granted Settled or Temporary Status by the cut off date.
An individual will automatically lose settled status if he/she has been absent from the UK for 5 years continuously. This is may sound advantageous as it is longer than the current 2 year period; however once Settled Status is lost it will not be possible to re-enter the UK as at present. They will need to qualify for entry under whatever system the government puts in place for EU citizens after 29 March 2019. This is unlikely to be easy.
Healthcare and Comprehensive Sickness Insurance (CSI)
The European Health Insurance Card scheme and healthcare arrangements set out in EU regulations will continue to be in place so that EU citizens will be able to access NHS funded healthcare in the UK.
The agreement defines the EU citizens and family members that are protected by it. These definitions are set out in Directive 2004/38/EC. The issue is that the Directive defines self-sufficient persons and students, (including their family members), as people who must hold CSI. This means if we believe strictly in the terms of the agreement, CSI continues to be a requirement. Although government ministers have made some assurances, the only official source that confirms this is the Home Office website that states:
‘We will not check that you hold comprehensive sickness insurance regardless of what activity you have been undertaking in the UK… In some circumstances, comprehensive sickness insurance is still required for the purposes of accessing the healthcare system in the UK, but will no longer be considered as a requirement for acquiring settled status.’
Experience has taught me that taking the word of the Home Office, on such matters is never a good idea. There are no provisions in place, once the Brexit process is complete, to stop the Home Office from doing a U-turn in relation to this.
If you have been granted Settled Status you will get the same entitlement to public funds as British citizens. If you have been granted Temporary Status in the UK you will have a more limited access. Under the principle of exportability people who exported UK benefits abroad before the cut off date will be able to continue doing so.
People who worked in other EU states before the cut off date will be able to carry on counting these periods towards their pension entitlement.
EU citizen students wishing to study at UK universities will continue to pay home fee and get government backed tuition fee loans.
EU citizens who fall under Article 6 and Article 7 of Directive 2004/38/EC, and who are legally resident in the UK, will qualify for Settled or Temporary status. However the new agreement does not, for now cover Norway, Iceland, Lichtenstein and Switzerland. It is expected to extend to these countries in the future. Irish nationals will not be affected and do not need to apply for Settled Status. Below is a summary of the Articles stated above.
EU citizens and their family members who have a valid passport (and are not EU nationals) but are accompanying or joining an EU citizen will have the right of residence in another Member State for a period of up to 3 months without any conditions other than holding a valid identity card or passport.
EU citizens who can meet the requirements below have a right of residence in another Member State for longer than 3 months if they:
An EU citizen who is no longer a worker or self-employed person will keep this status, if:
Their family members can usually accompany or join them, if the EU citizen satisfies the points above.
This means that an EU citizen must continue to be a worker, self-employed person, student, or self-sufficient person, or lawfully retain those rights, on 29 March 2019 to be eligible for Settled or Temporary status. EU citizens who cannot demonstrate that they are in one of the above categories on 29 March 2019 may not satisfy the requirements. The agreement is silent on what EU citizens who do not meet the requirements can do. The Home Office has indicated that these people may receive Temporary Status but the published agreement is ambiguous on this point.
You must submit an application to the Home Office by the cut off date. A voluntary scheme is to be introduced later this year, in September. So you may be able to apply as early as this, although you are not compelled to do so.
If you do not apply, you will be committing a criminal offence, in breach of UK immigration law. As an illegal immigrant you will face ‘a really hostile environment for illegal immigrants,’ as described by the Prime Minister when she was the Home Secretary in 2012. Mrs May has not failed to deliver on this promise as the current UK government has brought in laws that require residential landlords in England to carry out checks on their tenants’ immigration status; hospitals, community interest companies and charities receiving NHS funds must conduct ID checks on patients before treatment and to bill them if they are found not to be eligible for NHS care; and in a recent move this month banks and building societies are forced to carry out immigration checks on the owners of 70 million current accounts, with a power to close down the accounts of illegal immigrants.
After the UK exists from the EU, this situation is set to get even harsher. In October last year, a leaked Home Office document suggested the government wants to go further in weakening family reunion rights for EU nationals in Britain, turning thousands more into so-called ‘Skype families’.
It is likely that you will need to complete an online application form and provide a photograph, but not give other biometric information, as is common in most other immigration applications. You will also need to pay a fee. The Home Office has indicated that this will not exceed the cost of a British passport. This is currently £72.50, at the moment, although Home Office fees typically rise in April each year.
The agreement suggests the government will try to minimising the amount of documentary evidence to be provided. This will include Home Office caseworkers using existing government data, such as income records, to determine how long EU nationals have resided in the UK. Having dealt with the Home Office and HMRC, typically when representing Tier 1 Entrepreneurs with extension applications, I am not confident this will work, unless a complete over haul of the system is implemented and adhered to.
We are told that the Home Office will be flexible in the decision making process. Unlike Points Based System applications, you will be allowed to supply more evidence or remedy any deficiencies in the application before a decision is made, but only if it appears that errors can be simply rectified. All applications will be assessed against a a general criteria assessment of conduct and criminality, not just those who are considered as being a threat to the UK (as is the case at present). People who provide fraudulent information or documents, will be refused and subject to removal from the UK. As will those who abuse the process, although what will considered as ‘abuse’ has not yet been defined.
If your application is granted you will be issued a residence document. When you have got this any previous immigration permission will automatically expire and be replaced by this document.
If your family arrived in the UK before 29 March 2019 they will be eligible for Settled Status after 5 years. If your family have been in UK for less than 5 years on the above date, they will eligible for Temporary Status until they reach the 5 years required for Settled Status.
Family members legally resident in the UK by 29 March 2019 will be able to apply for the new status. However your family members listed below will be able to arrive after 29 March 2019 and qualify for Settled Status provided your relationship existed before that date and they can provide evidence of this:
Other family members will qualify provided they were living in the UK in line with EU law before 29 March 2019. This includes your:
Any of your family members who fall outside of the above will face the same stringent requirements as people coming to join British citizens
If you have a Permanent Residence card by 29 March 2021, you will be able to apply for a Settled Status document free of charge. You will need to prove your identity, give permission for a criminality and security check and provide confirmation of your continued residence in the UK. You will not have to show that you continue to exercise treaty rights (e.g. continue to be a worker).
I would strongly advise applying for a Permanent Residence card document now as having this document will mean you can avoid having to encounter a full assessment later, at the same time as approximately 3 million other EU nationals and their family members.
If your convictions are dated before the cut off date and you have lived in the UK, you will continue to be protected by EU law. The Home Office will need to prove that you are a danger to public policy or security. If you acquire new convictions on or after the cut off date, you will not be protected by EU law. Your application will be decided under the UK assessment of criminality. This is a much lower test. You will therefore be at a much greater risk of refusal and removal.
The agreement will have the status of international law. If you are refused Settled or Temporary Status you will have a right to appeal the decision to the First-tier Tribunal (Immigration and Asylum Chamber). The European Court of Justice will have jurisdiction in the UK for 8 years from the date of your original application.
Our experienced Immigration Team offer bespoke tailor made solutions to suit our individual client needs including:
If you have any questions about your rights in the UK under EU law either as an applicant or employer, please contact us at firstname.lastname@example.org or by phone on 020 3818 5433.