December 08, 2017

U.K. Government's Technical Note: A New Streamlined Process for All EU Applicants Post-Brexit?

On 7 November 2017, the U.K. Government published a Technical Note on the administrative procedures that will apply to EU citizens post Brexit. The Note contains the intended approach of the Home Office on the new ‘settled status’ visa category that will become available to EU citizens in the United Kingdom in compliance with the obligations to be agreed and set out in the EU Withdrawal Agreement.

Where Do We Stand Today?

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Streamlined Application Process

The government recognises that the current application process is ill-equipped to deal with the anticipated influx of applications post Brexit. As such, the Note informs of the government’s intention to implement a completely new, streamlined, user-friendly, digital application process for settled status applications. The process will be designed to be engaging and built with the users in mind. An assisted digital service will be included for those who need support to make an online application. Verification of economic activity with other government departments will be encouraged to reduce the documentary requirements of proving eligibility under the Withdrawal Agreement.

Principle of Evidential Flexibility

The Note clarifies that EU citizens applying to stay in the U.K. post Brexit should not have their applications refused because of minor technicalities. Caseworkers considering applications will exercise discretion where appropriate. They will also give applicants the opportunity to supply supplementary evidence or remedy any deficiencies where it appears a simple omission has taken place, thereby avoiding rejections based on technicalities.

Sufficient Time Post-Brexit to Make an Application

The U.K. government estimates that individuals will have a two-year application period made available to them post Brexit. This is in line with Prime Minister May’s existing proposals for an implementation period. In her speech in Florence in September 2017, the Prime Minister suggested that EU citizens will be able to continue to enter, live and work in the U.K. during the implementation period post Brexit. There will be a new registration process for these individuals.

Out of Time Applications

The U.K. authorities will hold the discretion to consider applications submitted after the deadline if the delay was for a ‘good reason’. Applicants with applications refused for being out of scope will be in the U.K. unlawfully and will be required to apply to remain under successor immigration arrangements or they will need to leave the country.

Fee

The Note confirms that the application fee will not surpass the application fee for a British passport, which is currently £75.

Permanent Residence

A simplified process will be available for those already holding an EU permanent residence document as they will be required to exchange this for a settled status document in the United Kingdom. They will be subject to ID verification, a security check and confirmation of ongoing residence, as well as submission of a photograph, but no biometric enrollment will be required. The U.K. authorities will charge a reduced application fee for all permanent residence permit holders switching to the new settled status document.

Temporary Status

Individuals who are unable to evidence five years of continuous residence, but who can evidence that they were resident before the specified date, will be given temporary status. This will enable them to remain in the U.K. until they have accumulated five years of continuous residence, thereby allowing them to apply for settled status at the conclusion of the five-year period.

Resolution for Status

The technical note does not confirm the deadline by which EU nationals must have entered the United Kingdom to qualify for settled status. However, during today’s U.K./EU Joint Report (see our update here), this date has now been confirmed as the date of Withdrawal.

Review and Appeal

The U.K. government aims to establish an administrative review mechanism to resolve quickly any case working errors. Applicants will also have recourse to an independent judicial authority (as yet unspecified). This means that EU citizens and their direct family members will have recourse to a statutory right of appeal, allowing the English courts to examine the legality of the authority’s decision to refuse or revoke status. Individuals may remain in the United Kingdom pending the conclusion of the appeals process, unless a deportation decision is made or the individual is in the U.K. in breach of a deportation or exclusion order.

Criminality

The U.K. authorities expect applicants to self-declare criminal convictions in the usual way as with all other applications. U.K. authorities will seek to expel EU citizens who are foreign national offenders. Those who fall within this category may be denied their rights if they are considered a threat to public order or security.

Deportation

The U.K.’s criteria for considering deportation of non-EEA foreign national offenders will apply to EU citizens whose post-Brexit conduct falls within the scope of the U.K. legislation and rules, including those convicted of criminal offences.

Observations

There are believed to be approximately 3.5 million EU nationals in the United Kingdom currently. It is expected that there will be a significant number of EU citizens applying for settled status under the new system, as this is the only way that EU citizens will be permitted to remain in the U.K. As such it will be unprecedented to see how the U.K. authorities propose to combine data and security in a simplified process that is convenient, user-friendly and streamlined.

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