Deal or no deal? What shall we expect after Brexit and how to secure your rights with the Settlement Scheme? Solomiya Boyar, Immigration Lawyer, explains on Brexit issue
Perhaps, these are the hottest topics on Google search today. Every EU citizen and their family member residing in the UK are waiting for an update on Brexit and with caution we are expecting the Parliament’s vote on 11th of December. If there is no deal, then it would mean that only those who were residing in UK by 29 March 2019 will be able to apply under the EU Settlement Scheme. However, if the MPs vote to ‘go ahead’ on Tuesday, then the November Draft Withdrawal Agreement (DWA) will come into force.
Why is the DWA important for EU citizens and their family members?
- Firstly, the DWA means that there will be a transition period from 29 March 2019 – 31 December 2020, so that EU nationals will be able to exercise free movement rights in the UK.
- Secondly, the DWA protects the current rights of EU nationals under the EU law until 31 December 2020.
- Finally, the DWA gives protection of rights after the end of transition period.
During the transition period, EU nationals and their family members will be able to make applications to the Home Office under the EU Settlement scheme. They can do so voluntarily before 31 December 2020. However, after this date, it will be mandatory for all EU residents to submit application to the Home Office.
There will be two types of applications – indefinite leave to remain (ILR) or limited leave to remain under the EU Settlement Scheme. The status which is acquired through the scheme, will be called settled or pre-settled status. Residents who already have their permanent residence cards or registration certificates issued by the Home Office will be able to exchange them on settled / pre-settled status.
After reviewing the Appendix EU and DWA, we were able to make some conclusions and here are a few advantages and disadvantages of the scheme:
Advantages of the Settled Status:
- EU nationals do not have to exercise EU treaty rights to acquire ILR (Indefinite Leave to Remain, previously known as a Permanent Residence)
- Admin Review/ Re-application as remedies to challenge any refusals.
- No financial dependency rules for parents, grandparents and great-grandparents.
- Simplified application process through a digital app.
Disadvantages of the Settled Status:
- No Right of Appeal.
This means that there will not be an independent judge who will determine your matter balancing out all factors. Your application will be always decided by the immigration officer.
- Your ILR will not be backdated, which will effect on when you can submit your British citizenship application. For example, if you had acquired your right to permanent residency in 2010 and never applied for your PR, your Settled status will be dated post March 2019. This means you will have to wait for further 12 months before applying for British citizenship.
- No unmarried partner category under Surinder Singh
- A ‘category of parents of EU children studying in the UK’ will not qualify for ILR
- A ‘category of primary carer of British children’ is not covered by DWA nor Appendix EU carer of EU child’ (Zambrano cases) will no longer exist.
- Discretionary refusals – likely to affect domestic violence cases
In light of the above, it remains to be seen on what practical implications the scheme will have for EU residents and their family members after Brexit, however a big shadow of uncertainty is currently hovering over Brexit question.
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