The UK Government has clarified what the implications of Brexit are for EU citizens living in the UK and has issued specific recommendations. Relevant information is now available on a dedicated website.
Basically, a distinction is made between the legal status of ‘pre-settled’ and ‘settled’. The following benefits are common to both forms of status: Individuals can work in the UK and claim the National Health Service (NHS). They may enrol in education or continue their studies. They can access public funds, such as state aid and pensions, if they are eligible for them. They enjoy full freedom of travel in and out of the UK. They may bring family members into the country after December 31, 2020.
In principle, the following categories do not need to apply: citizens of the Republic of Ireland, persons with an unrestricted residence visa in the United Kingdom, and persons with a Returning Resident visa. However, their family members must apply unless they are British or in the same category. In addition, the future rights of citizens of Norway, Iceland, Liechtenstein and Switzerland are still being negotiated.
The application system will be available from March 2019. The deadline to apply for status which is valid from 1 January 2021 is 30 June 2021. The application fee is set at £65 (currently €78) for persons over the age of 16 and £32.50 pounds (€34) for minors.
Settled und pre-settled status
The two status categories are very different. Settled status allows you to stay in the UK for as long as you like in the future. You are also entitled to apply for British citizenship if you meet all the conditions. All children born in the UK will automatically become British citizens.
Pre-settled status means that you are entitled to live in the UK for a further five years after being granted this status. Following this, you can apply for settled status. This requires a stay of at least five years in the United Kingdom with at least six months continuously spent in the United Kingdom each year (‘continuous residence’). There is no fee for this. It is proposed that individuals may live outside the United Kingdom for up to two years, but this is still subject to approval by Parliament.
Children who are born in the UK during pre-settled status will no longer automatically receive British citizenship. This will only happen when a parent is either British or has settled status.
Previous UK residency must be proven
Proving continuous residence will be somewhat cumbersome, since there are no legally binding registration histories or registration offices for residents of the United Kingdom. The website provides a wide range of evidence to prove residence: the first of these are the P60 (total tax credit) or P45, the employer’s document confirming termination of employment.
In addition, there are payslips; bank statements; utility bills including address; employment contracts or letters confirming employment from the past; letters, certificates or bills from universities; entry/exit stamps in passports; visa stamps; and airline tickets or train tickets with names, date and stamp. The latter are to confirm entry into the United Kingdom. All documents can be submitted online.
Criminal record can lead to refusal
The issue of criminal convictions or violations in terms of the application process is also addressed. Anyone over the age of 18 will be questioned about their criminal record as part of the application procedure. This information is then checked against the UK crime database. However, in contrast to German law, the concept of criminal history is broadly interpreted in the UK. For example, serious „speeding violations“ in Germany result only in a „Central Card-Index for Traffic Offences“ („Flensburg“) instead in UK in a criminal record, even though they are to be disregarded for the purpose of assigning status. Other criminal records, such as tax offenses, alcohol matters and drug offences, will be automatically discussed as part of individual case evaluation.
‘Economic livelihood’ must be given
Undeclared work, which is widespread among immigrants from Central and Eastern Europe in the United Kingdom and almost impossible to police due to a lack of compulsory registration, could lead to serious problems. Observers refer here to the ‘standard practice’ of ‘legal students’ with their boyfriend/girlfriend, who do work on the side or completely cash-in-hand. In these cases, it will be almost impossible to provide evidence of economic livelihood during their recent residence in the UK. These cases are now likely to be investigated. Presumably, this was a political goal of Brexiteers even before the Brexit vote.
The regulations published by the UK government create considerable bureaucratic hurdles for staying in the UK, particularly for those who do not have a top job with an influential employer. Assumedly, these employers would take care of these politically motivated complications.