5. How will the application process work?
5.1.The application process we are designing for EU citizens and their family members applying for status under the EU Settlement Scheme will be straightforward and streamlined. The scheme will be delivered through a digital application process which will be available from late 2018 so that EU citizens and their family members can begin to obtain their new UK immigration status at their earliest convenience. There will be assistance available for those who need it to complete the online application process.
5.2.The online application form will be short, simple and
5.3.The process will be particularly straightforward for those EU citizens and their family members who have previously been issued a permanent residence document (that is a document certifying permanent residence or a permanent residence card, issued by the UK under the EEA Regulations).12 They will be able to exchange this free of charge for settled status (indefinite leave to remain) under the scheme, subject only to criminality and security checks and to confirming that this status has not lapsed or has done so through absence from the UK for more than two consecutive years (as set out in the Free Movement Directive) but not more than five consecutive years (as set out in the draft Withdrawal Agreement: see paragraph 3.4, above). The assessment of their previous UK residence which we will have done before issuing their permanent residence document will not be repeated.
5.4.Otherwise, where the applicant is an EU citizen and the automated checks of HMRC and DWP data indicate that they have been continuously resident in the UK for a period of five years, they will be granted settled status (indefinite leave to remain), subject to criminality and security checks. We expect that, for the majority of EU citizens who are or have been working, we will be able to help them confirm their residence in this way.
5.5.Where the automated checks of HMRC and DWP data do not indicate that the EU citizen has been continuously resident in the UK, or indicate that they have been continuously resident here for a period of less than five years, the applicant will then be able to upload documentary evidence of their continuous residence (or evidence that they
are in one of the categories eligible for settled status with less than five years’ continuous residence, as described in paragraph 3.7, above). Where appropriate, they will be granted settled status (indefinite leave to remain), subject to criminality and security checks. Otherwise, where the HMRC and DWP data and/or their documentary evidence establish that they have been continuously resident here for a period of less than five years, they will be granted five years’
5.6.We will publish a list of the type of documentary evidence which the applicant will be able to provide of their continuous residence in the UK. A draft of this list is at Annex A to this document. We will seek to guide applicants to use the evidence they may have which most readily evidences their continuous residence. But this guidance will not be prescriptive or definitive. We recognise that some applicants may lack documentary evidence in their own name for various reasons, and we will work flexibly with applicants to help them evidence their continuous residence in the UK by the best means available to them.
5.7.Applications made by families at the same time will be considered together. However, where the applicant is an EU citizen who is here as a family member of an EU citizen (or British citizen) resident in the UK, they will be able to rely on their own continuity of residence as an EU citizen to apply for status under the settlement scheme. Where they are the family member of an EU citizen, they will not need to provide evidence of their family relationship to that person, unless they are relying on that relationship in one of the categories eligible for settled status with less than five years’ continuous residence, as described in paragraph 3.7, above; they are relying on a retained right of residence after that relationship has ended, as described in paragraph 6.9, below; or they became an EU citizen within a period of continuous residence in which they otherwise rely on having been a family member of an EU citizen.
5.8.Where the applicant is a
5.9.In addition, because the status here under EU law of such a
5.10.Evidence of the EU citizen having been granted status under the scheme will
constitute sufficient evidence of that person’s identity, nationality and continuous residence
(for the period on the basis of which they were granted status). The
5.11.Subject to those requirements and to criminality and security checks, the
5.13.The requirements set out in the Immigration Rules for the EU Settlement Scheme (see Annex B) will be strictly in accordance with the conditions agreed under the Withdrawal Agreement, except where the UK is applying more favourable criteria (for example, in deciding that the main requirement for status to be granted under the scheme will be residence in the UK, generally in line with current free movement rules on the continuity of that residence).
5.14.There will not be any further discretion to refuse a valid application under the scheme beyond the conditions agreed under the Withdrawal Agreement, and we will minimise administrative burdens by not requiring more information than is strictly necessary to determine whether the requirements set out in the Immigration Rules for the scheme have been met.
5.15.We will work with applicants to help them avoid any errors or omissions that may impact on the application decision. Caseworkers will have scope to engage with applicants and give them a reasonable opportunity to submit supplementary evidence or remedy any deficiencies where it appears a simple omission has taken place. A principle of evidential flexibility will apply, enabling caseworkers to exercise discretion in favour of the applicant where appropriate, to minimise administrative burdens.
5.16.As agreed with the EU in the deal on citizens’ rights, criminality and security checks will be carried out on all applications for status under the scheme. In line with the draft text of the Withdrawal Agreement, conduct (including any criminal convictions relating to it) before the end of the implementation period (31 December 2020)
by a person protected by the agreement will be assessed according to the current EU public policy tests for deportation, as set out in the EEA Regulations,13 while their conduct (including any criminal convictions relating to it) after that period will be considered against UK deportation thresholds.14 This is a sensible approach to ensure that we identify any serious or persistent criminals, or anyone who poses a security threat, to protect everyone who lives in the UK; we are not concerned here with minor offences, such as a parking fine. It will not affect the overwhelming majority of EU citizens and their family members.
5.17.The draft text of the Withdrawal Agreement makes provision for an applicant for residence status to be issued with a certificate of application to confirm they have made an application which is under consideration by the Home Office. We will provide further information in due course about arrangements for this under the scheme.
5.18.A valid application for status under the EU Settlement Scheme will only be refused under the Immigration Rules for the scheme on the basis of criteria which reflect the Withdrawal Agreement or the more favourable UK approach. Where a valid application made is refused under the scheme, we will provide for the right to request an administrative review of the decision. A person refused status under the scheme before 31 December 2020 may also make a further application under the scheme at any point before 30 June 2021.
5.19.Primary legislation is required to establish a right of appeal for the scheme, but subject to Parliamentary approval, we intend that those applying under the scheme from 30 March 2019 will be given a statutory right of appeal if their application is refused. This will allow the UK courts to examine the decision to refuse status under the scheme and the facts or circumstances on which the decision was based.
5.20.Until the end of the implementation period, applicants refused status under the scheme will still be able to assert their free movement rights and will retain their statutory right of appeal against any restriction of those rights under the EEA Regulations.
5.21.Consistent with the draft text of the Withdrawal Agreement, the draft Immigration Rules for the scheme confirm that, where a person granted status under it also has a right to reside here under the EEA Regulations, their status under the scheme does not have effect to their detriment in so far as it is incompatible with that right.
12Or the person has previously been granted indefinite leave to enter or remain in the UK (as evidenced by a Biometric Residence Permit, other valid document or endorsement issued by the Home Office or Home Office records) and this status has not lapsed (through absence from the UK for more than two consecutive years) or been revoked or invalidated.
13This involves consideration as to whether the person is a genuine, present and sufficiently serious threat to the fundamental interests of UK society, on grounds of public policy or security, such as to justify refusal of status and deportation.
14The UK Borders Act 2007 creates a presumption that foreign criminals will be deported if they are convicted in the UK of a crime leading to a prison sentence of 12 months or more, unless one of a number of exceptions apply. The exceptions include where deportation would breach our obligations under the European Convention on Human Rights or the Refugee Convention or where the person was under the age of 18 on the date of conviction. Where a foreign criminal does not fall within the scope of deportation under the 2007 Act, for example if the person is convicted of an offence outside the UK, consideration may be given to deportation under section 3(5) of the Immigration Act 1971 on the basis that the individual’s deportation from the UK would be conducive to the public good.