Wed 06 Mar 2019

Settled status or permanent residence?

The EU Settlement scheme which aims to allow EU nationals to continue to live lawfully in the UK after Brexit is already open to certain applicants and is running at a public testing phase stage. A question we commonly hear is how is it different to residence documentation under EU law and is there a "preferred" option?

Applications made under the EU Settlement scheme are designed to be more user-friendly and straightforward than applications for Permanent Residence. An application of the former type does not require the exercise of a Treaty Right, instead the main requirement is continuous residence.

Permanent Residence may not be a valid status after 31 December 2020 but it may still be suitable for applicants who wish to naturalise as British citizens and satisfy all the conditions for naturalisation now. One of these conditions is that the applicant must have been free from immigration restrictions for at least 12 months before applying (except when applying as the spouse of a British citizen).

Permanent Residence operates automatically under EU law and while the physical Permanent Residence document is always required in naturalisation applications, it is possible to avoid waiting the 12 month period when the applicant has acquired the status more than 12 months ago but has only been issued with the document recently.

Status granted under the EU Settlement scheme does not operate automatically - it is granted by the Home Office following an application. An applicant will therefore always need to wait for 12 months after being granted Settled Status before applying for naturalisation as British citizen.

Permanent residence

Settled status

Status will not be valid after 31 December 2020 (30 June 2021 if there is an implementation period)Status validity will not be affected by Brexit
Must show exercise of Treaty Rights for qualifying period (usually five years)No requirement for exercising Treaty Rights - the primary test for eligibility is residence
Acquired automatically - if eligibility is met, status can be retrospectively relied on for the purposes of naturalisationAcquired through application only - if granted applicant must wait for 12 months before applying for naturalisation
Processing times/service standard is up to six monthsNo processing times published yet but applications are processed much quicker (as quickly as within a few hours)
A fee of £65 applies for applicationsApplications will be free of charge when made after 29 March 2019; applications made prior to this date will be charged at £65 for adult applicants and £32.50 for children under 16 but will be refunded in due course
Non-EEA family members must prove that they are a family member continuously resident in the UK and that their EEA family member exercised Treaty Rights (usually for five years)Non-EEA family members must prove that both them and their EEA family member were continuously resident in the UK (usually for five years)

Nonetheless people in certain circumstances would have better prospects of success if they applied under the Settlement scheme than making an EEA application. This is most likely to be the case where the applicant was a student or self-sufficient person and did not have Comprehensive Sickness Insurance during their five year qualifying period.

Such applicants may well be refused a Permanent Residence application (which could take up to six months in processing time) but would have no problem obtaining Settled Status (with a significantly less processing time).

Another group of persons who may benefit from the scheme are non-EEA family members who have difficulties proving that their EEA family member is exercising Treaty Rights in the United Kingdom - a requirement they must meet in order to obtain a residence card.  These family members will benefit from the scheme's requirements if they can prove their and their family member's residence in the United Kingdom.

Our immigration team has experience with Settled and Pre-Settled Status applications as well as complex EEA applications. If you have any questions about the best route for you please do not hesitate to get in touch.

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