Post-Brexit Settled Status Scheme Guidance published

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The Government has published new guidance for caseworkers considering applications by EU citizens for “settled status” in the UK after Brexit.

The guidance gives more detail about the application process and eligibility. It will be applied for a pilot scheme currently being run in the North-West, and the application process is expected to be open to all later this year.

We have already been told that the Government will lay before Parliament, prior to exit day on 29 March 2019, a Withdrawal Agreement and Implementation Bill: see David Davis’ Written Statement HCWS342 13 Dec 2017. This will contain domestic provisions to give legal effect to the Withdrawal Agreement (“WA”).

We are also expecting a White Paper on immigration implementation to be published before the end of 2018: BBC Today Programme, 6 February.

The guidance recently published is the UK’s application of Article 17 of the WA.

Importantly, the guidance seems to confirm that the UK is intending to be significantly more generous in giving settled status than required by the WA. The WA only requires the UK to give permanent residence to those who have not simply resided continuously in the UK, but who have also – during that time – exercised their Treaty rights under the Citizens’ Directive (e.g. by working).

Page 11 of the new guidance makes it clear that the eligibility for settled status is determined solely by residence, rather than by working or by exercising any other Treaty right for the requisite period (albeit a decision to exclude or remove an EU citizen, e.g. because of criminality, can prevent settled status).

There will undoubtedly still be concerns about the implementation of the guidance, and there is still no clarity as to what the Government will regard as a “good reason” / “reasonable grounds” (see Article 17(1)(d) of the WA) for failing to apply for settled status before the deadline (proposed to be a minimum of 6 months after the end of the transitional period, i.e. at least 30 June 2021).

Implementation issues are comprehensively explored in a recent report by Oxford University’s Migration Observatory: “Unsettled Status? Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit?” (12 April 2018).

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