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Our meeting with advice on Settled Status

Dr Brexit

THE MARCH meeting of London Freelance Branch was blessed with advice from Alison Stanley, Joint Head of the Immigration, Asylum and Nationality Team at Bindmans Solicitors, on what members who are nationals of other EU countries living and working in the UK need to do.

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Alison Stanley

Alison has worked closely with the NUJ and our legal department - it's "almost embarrassing" to say how long she has worked with Roy Mincoff. "Frequently we have been outraged by UK immigration controls - and I'm incandescent over what's happening with that and Brexit."

"There's not way I can get through all of this in the time we have," Alison announced: see the full slides that she prepared (PDF here). She updated these a few days before the meeting - "but of course we are all up in the air because we don't know what'll happen with Brexit, or when".

What we do know is that the UK government published a Statement of Intent on "settled status" for EU nationals in the UK in July 2018. There were more details in the draft Withdrawal Agreement published that November; and then in December we saw a government policy paper on the position of EU nationals in the event of the UK leaving the EU with no deal - "talk about leaving things to the lastminute.com!"

If a deal is reached there's meant to be a "transitional period" that was to have started on 29 March 2019 and is still scheduled to end on 31 December 2020 - despite the repeated postponement of the start date.

Whether there's a deal or not, EU nationals in the UK are invited to apply for "EU Settled Status".

"EU Settled Status" is a whole new set of rules. Previously UK law has spoken of "Indefinite Leave to Remain". EU law uses the term "Permanent residence".

Anyone can apply now. You will have to pay £65 - but you'll get it back "at some time".

Applying for settled status - the timetables

If there is a deal between the UK and EU, you will have to show that you are resident in the UK by 31 December 2020 - then make an application by 30 June 2021.

The December policy paper said that if there was no deal, there would still be a settled status scheme - but it would have a shorter running time: everyone would have to make their application by 31 December 2020 - and in general only family members who were in the UK by 29 March 2019 would be covered.

Currently the Withdrawal Agreement does not cover citizens of countries in the European Economic Area or European Free Trade Area (EEA or EFTA). The non-EU EEA countries are Iceland, Liechtenstein and Norway; and Switzerland is in EFTA but not the EU or EEA.

If you've come from one of these countries to the UK, Alison invited you to talk to her - via brexit@londonfreelance.org - you may need to do something different as the UK government is seeking to make similar agreements with those countries. And see the details of Permanent Residence below.

If you are a citizen of the Republic of Ireland you do not need to apply.

If you already have Indefinite Leave to Remain or Enter under UK immigration law you do not need to apply.

Applying for settled status - the requirements

Under the Settled Status scheme, if you have been living and working in the UK for five years you can apply for Settled Status.

Your five-year residence needs to be "continuous". In general, that means you should not have lived outside the UK for more than 6 months out of any 12-month period. Stays outside the UK of 12 months are allowed for important reasons such as maternity.

At the same time as you as an EU national make an application, you can apply for dependent family members: your spouse (wife or husband); your civil partner; someone with whom you are in a "durable relationship"; your child under 21 or a child of your partner. You can apply for a child aged over 21 who is dependent on you, and for some other relatives (seek advice on these).

This is a different definition and "more generous" than that under ordinary UK immigration law.

Anyone for whom you apply will need to have a passports (or equivalent identification document) and they have to meet the five-year condition. If you are applying for a child you should get school and medical reports to establish how long they have been in the UK.

What if you’ve been in the UK less than five years?

If you are an EU national and you have not clocked up the required five years, you can apply for something called "Pre-settled Status". You will be able to upgrade this to Settled Status as soon as you've clocked up the five years.

But you can apply for full Settled Status if you've been in the UK for less than five years - but have been in the UK for three years and have worked in another EU country and have usually come back to the UK once a week.

There is also provision for retirement or stopping working for health or accident reasons - and for the relatives of someone who met the conditions but has died.

If the UK leaves the EU with no deal, the deadline to apply will be 31 December 2020.

If you are applying for someone who is currently out of the UK "it would be advisable for them to come back". You can still apply for close family members if they get to the UK before we "fall off the cliff" on 29 March 2019 if there is no deal. A child born outside the UK after that deadline can apply.

Spouses will be able to join EU people who have Settled Status in the UK - until December 2020 in the event of a no-deal exit. After that, the much more onerous standard UK immigration rules will apply.

Beware the standard immigration rules

It's not just that the process of applying for Settled Status or Pre-Settled Status is easier. Under the standard UK immigration rules the fee to sponsor a spouse is currently £1033 - and it is likely this will go up in April 2020. An application for Indefinte Leave to Remain for yourself - after the deadlines or if you are a citizen of a non-EU country - is £2389..

Applying for settled status: the mechanics

The process of applying for Settled Status is "remarkably easy," Alison says - and "I feel I should touch wood because the Home Office has such a poor record of implementing computer systems and immigration systems..."

You need a mobile phone that is running a version of the Android system newer than 2015 and has "NFC" hardware - that stands for "near-field communication" and means the phone has the ability to read the chip in, for example, an e-passport. You need to have an e-passport or "biometric passport". (Download the app from play.google.com and see the help page).

"When I've done it," Alison reports, "it's taken 20-30 minutes" and that includes the time to fiddle around installing the Settled Status app on the phone.

"The decision-making process was incredibly quick - for the Home Office," she adds: "it took under 3 hours to get a response." That was an application for someone who was employed.

You get the result of your application in an electronic document: "whatever we think abut saving trees." Alison advises, "you should definitely print it out and file the paper copy safely."

There is a mechanism for you to go into the Home Office website to view and prove your status. Potential employers can - with your permission - go into the website to check your status.

Information about your application "should be" available at the UK border to speed your passage through passport control.

When you apply you need to give a National Insurance number because that's how they see you've been working - whether you are employed or self-employed.

The pilot of the scheme for making applications was for people in the National Health Service and in academia - so it didn't really test how the scheme would work for freelances. We will report problems if we hear about them.

It is also possible to get Settled Status if you have been "self-sufficient". To do this you need to upload other documents to prove that, and your residence. Itt will only take 10 documents. If more are required, the Home Office will contact you again.

Because it will be a free process there's nothing to stop you reapplying within the time limits.

What does EU Settled Status offer?

Once you have EU Settled Status you can stay in the UK forever. You should be able to leave for up to five years and still have the right to return (though this but is subject to approval by Parliament). If in contrast you have Pre-Settled Status, leaving for two years breaks the continuity of your presence in the UK and you need to reapply. (Non-EU citizens with Indefinite Leave to Remain get only two years' grace.)

If you have a child in the UK after you get EU Settled Status that child is born a British citizen.

With EU Settled Status you can work and study and use the National Health Service without paying at the point of use.

But you are not British and you can't vote. (Alison has "met a lot of EU citizens who have said "if only I'd become a British citizen and voted in the referendum we might not be in this mess!")

What happens if you’re refused EU Settled Status?

There may or may not be a right of appeal to a court.

There will definitely be an administrative review. You can ask for review if you think they've made a mistake on your eligibility - or granted EU Pre-Settled Status when should have full EU Settled Status.

There is a fee of £80 for such a review, which will be refunded if you succeed.

Applying for settled status - in person

There have been announcements of centres where you may apply in person if you cannot use the app. On 20 March the government published details of these. There are 27 locations, of which 6 are in London. It states that you should not start the application prcess in any other way before your appointment at one of these.

Keep Her Majesty’s Government updated

If you change address you have to tell the Home Office. "This," Alison murmured, "is more of the policy of keeping track on migrants that we've seen expanding over the past decade and a half."

Another approach: Permanent Residence

Permanent Residence is the old pre-Brexit-mess scheme, which should extend to 29 March and possibly longer if there's a Brexit agreement between the UK and EU with a transitional period.

To apply for it you have to have been in the UK as a "qualified person" - a worker, a work-seeker, a student, or self-sufficient.

Until Brexit the only reason to apply for Permanent Residence was if you wanted to become a British citizen - or if you wanted to give rights to dependents who were nationals of "third countries" outside the EU.

If you want to become a British citizen, unless you're married to a British citizen you have to have lived in the UK for five years with permanent residence.

Applying costs £65 and you will not get that back - and the application "is much more document-heavy".

Nationals of the EEA and EFTA countries should consider applying for Permanent Residence.

Self-employment and Permanent Residence

If you're self-employed you need to provide proof that you have some form of "genuine and effective" self-employment when you apply for Permanent Residence. You need to have registered as self-employed with Her Majesty's Revenue and Customs (HMRC) and to have paid tax and National Insurance (NI). The Home Office expect to see documents to prove all this when you apply for Permanent Residence.

It's easy to get a record of your NI contributions online. The Home Office will expect to see your accounts as a sole trader (or as a company if that's how you work). It will expect to see invoices to show you're still up and running after your last accounts or tax return.

If you are applying for Permanent Residence you can also apply for: a spouse or civil partner; any direct descendants of either of you that are under 21; and direct relatives of either of you "in the ascending line" (parents, grandparents...)

Alison notes that it is "incredibly hard to sponsor elderly relatives" under standard UK immigration law.

You can apply for Permanent Residence as an EEA-national worker so long as you have been in the UK for five years.

Once someone has Permanent Residence this does not change if, for example, the relationship with the person who applied for it for them breaks down or they are a child who becomes independent.

Family members and Permanent Residence

Under EU/EEA law "extended family members" have to be recognised by the Home Office as entitled to Permanent Residence. These include unmarried partners in a "durable relationship": the Home wants to say that this is the same as being an "unmarried partner", but the definition is that the relationship is "durable" which means it is looking to the future. A couple who have not been together long and have had a baby may qualify, for example. The definition also includes people who need personal care; relatives coming to the UK, and relatives who satisfy the requirements for indefinite leave.

Again, citizens of the Republic of Ireland are not impacted because Ireland remains part of the Common Travel Area agreed with the UK since 1923.

To apply for Permanent Residence you need to fill out forms - which are available online to download and print. Applications costs £65 per applicant. You have to submit your passport and, as noted, the Home Office can take up to six months to consider the application. Alison reports that more straightforward Permanent Residence applications by people who find it easy to prove they have been resident for five years have gone through in two months.

There is a right of appeal: the absolute deadline of appealing within 14 days from the date the decision was sent (not the date it was received) is strictly enforced.

Questions from the floor

A member asked: my Italian nephew became a British Citizen - can he sponsor me?

A: There might be a problem because he is probably now a dual citizen. But you are working in the UK. You do not need a sponsor! Next month, when you will have completed 5 years in the UK, download the app and apply in your own right for Settled Status.

Q: Can you describe the app?

A: It goes like this:

  • You take your picture
  • You scan the details page of your passport
  • You place your biometric passport on the phone and it reads details off it
  • It sends you an email saying "send us your National Insurance number"
  • With any luck you get an answer in three hours.

Q: What if a freelance doesn't earn enough to qualify to pay tax? I hear about £30,000 limits...

A: Those limits apply to work permits for non-EU citizens - for those there is a high income and qualification threshold. Which is why everyone who can get Permanent Residence or EU Settled Status or EU Pre- Settled Status absolutely should do that. Even if they didn't have to pay tax they should have completedregistered for National Insurance.

"I haven't done this yet for anyone with very low income," Alison observed: "but even if they are not paying they should have documentation of not paying: they only need to prove they're economically active. If that's hard my strong advice would be to get an easy employed job if they need to secure their position and their partner's and their kids' and their mum's - even a part-time job, say 12 hours a week."

Q: There are 9 islands in the Caribbean that are part of the EU - I am trying to set up a forum for people from my part of the world - what advice can you give me?

A: The UK immigration system is absurdly complex and designed to keep people out and at odds with international law. When I started doing immigration law the rules were an A4 booklet of maybe 10 pages - now the rules are 6 millimetres thick and I wouldn't have a clue how thick the guidance is. The Law Commission is looking at it - but the government may not accept recommendations to simplify it.

One difficulty with getting official support for a forum is that it's a criminal offence to give advice without complying with the rules of the Office of the Immigration Services Commissioner - there have been advisers and, to my shame, solicitors who have taken money and given appalling advice.

Q: I am 61 and this is my 4th career. I rely on the Home Office having the details of what I've paid - but what if they don't? Originally it was said the burden of proof to deny was on the Home Office - now it seems not. Should I wait until someone sues the government?

A: You must apply by the deadline.

Q: I've registered with the UK ID service and...

A: That's not the same and I hope no-one gets confused between that and the EU Settled Status app!

Q: For those who cannot use the Android app what is the second option?

A: the Home Office are setting up places you can go to - where they say they will have someone to assist - details are now here.

Q: I keep hearing about a requirement to have private health insurance...

A: The requirement to have comprehensive sickness insurance applies only to people who want to apply for Permanent Residence who are in the UK as students or who apply on the basis that they are self-sufficient without needing to work. It does not apply to people who are employed or self-employed . You can use the NHS.

Q: Do you suggest I do it now or apply for Permanent Residence?

A: If you want to become a British citizen, choose your five years carefully - seek advice. If you don't care about that may as well apply for EU Settled Status because it's quick and easy. But if there's to be another referendum you may want to apply become a British citizen soon...

  • This article was updated on 21 March 2019 with links and to announce the list of scanner locations
  • This article was updated on 29 April 2019 to correct the end of the "transitional period"