NEWSLETTER No. 50 - August 2016

ILR Indefinite Leave to RemainBrexit – guidance for EU nationals and family members on applying for EEA residence documents

The EU Referendum and uncertainty

The referendum result to leave the EU on 23 June 2016 has left many EU nationals and their family members living in the UK in a state of uncertainty. The same uncertainty applies to EEA nationals, Swiss nationals and their family members all who benefit from EU free movement rights.

What lies ahead? What can such individuals do now to try to safeguard their status?

Firstly – it is important to note that nothing has changed since the referendum and EU law continues to apply in full. The timetable ahead will only become clearer when the UK decides to formally hand in notice to leave the EU (through Article Treaty 50 of the Lisbon Treaty). This then will trigger detailed negotiations on the terms of the departure and the status of EU nationals in the UK.

Since the referendum various statements have been issued to try to “clarify” how things would work. Senior political figures have claimed how the status of EU nationals in the UK would be “safeguarded” and the official Leave campaign stated that EU nationals would be able to apply for “Indefinite Leave to Remain”. But this is a bureaucratic and expensive process and leaves the applicant applying under UK immigration law not EU law.

The reality is that nobody knows for sure what will happen and any speculation at the moment is purely speculation. It seems incredulous that the UK could look to change the rights of around 3 million EU citizens and their families already living and working legally in the UK.

What to do now

At this stage we would advise all EU nationals and their family members to look at applying for EU residence documents to clarify their status.

Those who are in the UK for less than 5 years should look to secure EEA Registration Certificates or EEA Family Permits / EEA Residence Cards. Those who have been in the UK in excess of 5 years should look to apply for EEA Permanent Residence.

Let’s look at each of these residence documents in turn.

EEA Registration Certificates

An EU/EEA national currently in the UK can look to apply for an EEA Registration Certificate to confirm that he / she is exercising an EU Treaty Right. This would include employment, self-employment, studying or self-sufficient persons.

This Registration Certificate confirms that the applicant is currently living in the UK and is lawfully exercising an EU Treaty Right. This is usually not a difficult application – the applicant just needs to show they are currently exercising an EU Treaty Right and not that they have being do so for any set period of months or years.

Please note – it is not at all mandatory to apply for a Registration Certificate but if there is a future cut-off date where EU free movement to the UK is stopped, then this document could prove very useful to confirm the EU national is already resident in the UK under EU law.

EEA Family Permits / EEA Residence Cards

These documents are mainly issued to family members of EU / EEA nationals who are exercising EU Treaty Rights in the UK.

EEA family permits are issued outside the UK and are valid for 6 months to join the EU national in the UK.

An EEA residence card is applied for while the applicant is in the UK and is valid for 5 years.

Both these applications involve proof of the relationship to the EU / EEA national (such as spouse, unmarried partner, child, other dependant relative) and that the EU / EEA national is exercising EU Treaty Rights such as a worker, self-employed person, student or self-sufficient person.

Family Members of EU / EEA nationals considering moving to the UK should perhaps see if they can apply sooner rather than later for an EEA Family Permit. Also, Family Members of EU / EEA nationals currently in the UK should look to apply for an EEA Residence Card as soon as possible.

EEA2 Family Permit UK visasFor more information on applying for EEA Family Permits and EEA Residence Cards see our FREE EEA GUIDE;

EEA Permanent Residence

In many cases, EU / EEA nationals (and their family members) who have been living in the UK for 5 years can apply for permanent residence also know as “a document certifying permanent residence” or a “permanent residence card”.

This document is not mandatory but we believe eligible applicants should seriously consider applying for one in light of the UK’s plans to leave the EU. This document could be very important in the years ahead for the following reasons;

to prove one’s right to reside in the UK

to prove one’s right to work legally

to obtain a mortgage

to be entitled to access healthcare and other UK public services

Also - since November 2015 permanent residence has been a mandatory requirement for an EU / EEA applicant looking to apply to naturalise as a British citizen and obtain a British passport.

Permanent residence can be applied for after five continuous years of possession of the right of residence. This means being a “Qualified Person” for 5 years such as a

Worker

Self employed person

Jobseeker

Student

Self-sufficient person


Family Members of EU / EEA nationals can also apply for permanent residence.

Applicants should note that the 5 years can be obtained by a combination of activities – so, for instance 3 years as a worker and then 2 years as a self-sufficient person, would enable one to apply for permanent residence.

Similarly, the 5 years does not have to be for the last 5 years – permanent residence can still be applied for on the basis of a previous 5 year period. For instance, the applicant might qualify based on 5 years employment from April 2008 to April 2013.

Also, short periods between positions of employment would not be a problem and absences from the UK will not necessarily break the 5 year continuity of residence. An absence from the UK of up to 6 months can still be accepted as long as fully explained and justified in the application.


* Our free Online Assessment Form


QUICKLINKS

Free online appraisal - migration assessment  BACK to homepage


Free online appraisal - migration assessment  UK visas for EEA / Our EEA Free Guide


Free online appraisal - migration assessment  BLOG 


Free online appraisal - migration assessment  Subscribe to our news


Commonwealth Immigration
NEWSLETTER - Subscribe to keep updated!
We are sending a newsletter on a periodic basis to update you on new developments and changes in all matters relating to migration.

Please feel free to forward the newsletter on to your friends and family. Newsletter will be archived on our web site as well.

Subscribe to our newsletter at info@commonwealthimmigration.com 


We hope that this newsletter has been informative for you.  However, remember everyone's circumstances are different so if you or a friend or family member want to check your eligibility to emigrate then either

1) complete the Online Assessment form on our website or
2) give us a call on +44 (0) 1223 830 916

We would love to hear from you!

Regards
Tim McMahon
Commonwealth Immigration
www.commonwealthimmigration.com


 


Contact us


Commonwealth Immigration Consultants Ltd.

based in London and Cambridge

Tel. +44 (0) 1223 830 916
Email: info@commonwealthimmigration.com 
How to apply for Permanent Residence as a Worker

There is no minimum salary required to be a Worker under EU law. As long as the employment is genuine and effective then this can count towards the qualifying period for permanent residence. Part-time employment on minimum pay would be sufficient.

For instance, an applicant who worked part-time and studied part-time could use their part-time employment as part of the qualifying period for permanent residence as long as their evidence is sufficient.

The Home Office guidance states that if the employment pay is below the National Insurance threshold of 155 GBP (approx) per week then they may look at it further to establish that it is genuine. However, there is no basis for this in EU law and part-time income is acceptable.

Short gaps between employment and certain absences overseas while working for a UK employer are also permissible.

Nationals on certain countries that joined the EU in 2004 and 2007 (the so called A8 and A2 countries) also had certain requirements to work in the UK – such as the Worker Registration Scheme and Accession Worker Cards / Registration Certificates. These restrictions were removed in 2011 for A8 countries and in 2014 for A2 countries.

A8 and A2 applicants need to be aware that if they apply for permanent residence as a Worker and they rely on any of those periods to qualify - then they must ensure they had the necessary paperwork at that time.

The A8 countries with restrictions up to 2011 are; Czech Rep, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia.

The A2 countries with restrictions up to 2014 are Bulgaria and Romania.

For all applicants, proof of employment and proof of UK residence are required when relying on periods as a Worker under EU law. It is not enough just to demonstrate paid employment you also need to ensure that you actually have proof of your residence in the UK during this time.

How to apply for Permanent Residence as a Self-Employed Person

Self-employment in the UK can be structured in a variety of different ways – as a sole trader, a contractor, in a partnership, a franchise or through a limited company.

The exact evidence to demonstrate self-employment will depend on exactly how the self-employment is structured. Often applicants need specialist help with this part of their application.

Generally speaking self-employment would need to be demonstrated by proof of income and that the income is accounted for properly through accounts, tax submissions etc. Having an accountant is not mandatory but again this can help to demonstrate genuine self-employment and provide an explanation of your income and tax affairs.

Self-employment does not need to have a minimum income. Also self-employment might generate a greater income at certain times of the year (seasonal work).

Tax affairs for a self-employed individual and / or limited company should be up to date and properly recorded for each year of self-employment.

Proof of self-employment and proof of UK residence are required when relying on periods as a self-employed person under EU law. It is not enough just to demonstrate income from self-employment you also need to ensure that you actually have proof of your residence in the UK during this time.

How to apply for Permanent Residence as a Student

Periods while studying in the UK count towards permanent residence.

Students need to show they were enrolled on a course of study at a recognised institution.

Throughout their studies they must also show that they have had sufficient funds to support themselves or were in receipt of financial assistance from family or through a bursary or grant.

A further requirement for students is that throughout their studies they had in place a policy to cover themselves for “comprehensive sickness insurance” – private medical insurance. This is something that has proven an obstacle for many students applying for permanent residence as they simply have not had this in place. Remember – this needs to be in place for the entire period of studies when applying for permanent residence as a student.

The Home Office states that “comprehensive sickness insurance” must cover “the applicant for medical treatment in the majority of circumstances”.

Proof of study and proof of UK residence are required when relying on periods as a student under EU law. It is not enough just to demonstrate enrolment as a student you also need to ensure that you actually have proof of your residence in the UK during this time.

How to apply for Permanent Residence as a Self-Sufficient Person

Self-sufficient persons are those who have enough financial resources to support and maintain themselves and their family without relying on the social assistance system in the UK.

There is no minimum amount of income or savings needed. Applicants need to show that their savings and / or income can maintain themselves. This can include income from investments, property or support from other family members.

Retired persons can also qualify as self-sufficient persons.

A further requirement for Self-Sufficient Persons (in common with students) is that they have in place a policy to cover themselves for “comprehensive sickness insurance” – private medical insurance. This needs to be in place for the entire period as a Self-Sufficient Person when applying for permanent residence.

The Home Office states that “comprehensive sickness insurance” must cover “the applicant for medical treatment in the majority of circumstances”.

Proof of self-sufficiency and proof of UK residence are required when relying on periods as a Self-Sufficient Person under EU law. It is not enough just to demonstrate your financial resources you also need to ensure that you actually have proof of your residence in the UK during this time.

The Application Process for Permanent Residence

Applications can take up to 6 months to be decided and most applications for permanent residence are quite lengthy in terms of paperwork. The application needs to cover a minimum 5 year period.

Applicants need to submit their original passport or National ID Card with the application. There is a process to request these to be returned while the application is continuing. This can easily take several weeks – so best to try to avoid any immediate travel plans if possible.

The application also requires a list of all absences from the UK during the qualifying period. Many applicants struggle with this section especially as EU passport holders are not stamped in / out of the UK. It is best to take your time to put together a list of absences to the best of your ability. This then should show that you have spent the majority of your time resident in the UK.

Criminal convictions need to be declared in the application but under EU law only serious convictions can prevent an applicant from being issued permanent residence.

Also, EU nationals do not need to sit the Life in the UK Test or an English language test when applying for permanent residence.

Permanent residence if issued, then allows the applicant to readily demonstrate their right to live in the UK on a permanent basis without having to exercise EU Treaty Rights such as employment etc.

Permanent Residence and then UK Citizenship

In November 2015, the Home Office changed the Nationality Instructions to make it mandatory for EU nationals and their family members to secure EEA permanent residence in the UK before being able to apply for citizenship.

The normal rule is that the applicant should then wait for 1 more year before applying for citizenship.

But in many cases it is perfectly possible for an applicant to apply for citizenship straight after securing permanent residence. This would be where an applicant has clearly demonstrated residence in the UK for 6 years or more while exercising EU Treaty Rights.

For example, if an applicant applied for permanent residence in June 2016 with compelling evidence of employment from June 2010 to June 2016, they could then reasonably claim to have been deemed to have acquired permanent residence in June 2015 (after 5 years employment) and not the date on the permanent residence document. In that case, as long as the evidence is strong, an applicant could apply for citizenship straightaway after being issued a permanent residence document.

Please note – EU citizens who are married to a British citizen or in a civil partnership with a British citizen still have to obtain EEA permanent residence by proof of 5 years of exercising EU Treaty Rights. However, they can apply for citizenship straightaway after securing permanent residence (they do not need to wait for one further year).

Applicants for citizenship need to pass the Life in the UK Test and meet the English language requirement unless they qualify for an exemption.

Our service in applying for EEA residence documents

We have many years experience in securing EEA residence documents and also UK citizenship for our clients. The process can be complicated and the paperwork needs to be correct and in accordance with the EEA Regulations / Nationality Instructions.

We can handle the whole application from start to finish. The service includes everything from pre-application advice, document review, completing forms, covering letter, drafting your personal statement, submission to the authorities and bringing to a successful conclusion. This continues throughout the whole process until your application is approved.

You will only deal with one dedicated immigration adviser to provide you with a focused one to one service.

Our success rate is second to none and we can provide numerous verifiable references from satisfied clients for you to review and inspect.

At this stage, we just need you to complete this quick registration form on our website;

* Our free Online Assessment Form

This should give us all the information we need to give you the correct advice.

We can then review in full and get back to you

Subscribe to our newsletter and follow our Blog to keep up to date on UK immigration changes.

 
OISC, UK visa, immigration services

Commonwealth Immigration Consultants
UK Government Registered Immigration Consultants No. F200100020

Member of the Association of Regulated Immigration Advisers (ARIA)
Affiliate Member of the Australian Institute of Migration

ILPA, Immigration Law Practitioners' Association

ILPA - Immigration Law Practitioners' Association
   
Commonwealth Immigration Consultants Ltd. | info@commonwealthimmigration.com