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Brexit – 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.

For more information on applying for EEA Family Permits and EEA Residence Cards

see our FREE EEA GUIDE;

FREE GUIDE ON EEA APPLICATIONS

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.

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;

http://www.commonwealthimmigration.com/assesment_form.html

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;

http://www.commonwealthimmigration.com/contact_us.html

http://www.commonwealthimmigration.com/blog/

Brexit – how does the UK leaving the EU affect EU / EEA nationals and family members ?

Now that the UK has voted to leave the EU this has created a great deal of uncertainty for EU / EEA nationals and their family members.

However it is important to remember that as of yet – nothing has changed. The UK remains a member of the EU and the free movement rights of EU / EEA nationals and their family members continue.

We will soon be publishing more detailed guidance on practical steps that can be taken to protect EU / EEA nationals and their family members in the UK – especially around the various types of documents that can be applied for. In the meantime, if you have any enquiries then please email us on info@commonwealthimmigration.com

Immigration Update on UK / EU proposals – February 2016‏

UK – the new immigration rules proposed after the EU Referendum

After the recent negotiations in Brussels, we now have further information on proposed changes to immigration law if the UK votes to remain in the EU following the referendum in June.

The UK government has agreed a deal to give the UK “special status” in the EU – assuming the referendum is passed and so called “Brexit” avoided.

There are 2 main areas of immigration that will be affected by new regulations after June.

These are;

1) Family Members of EU / EEA citizens.

2) British citizens using EU law for family members (the Surinder Singh route)

Let’s look at each of these areas.

Family Members of EU / EEA citizens.

For the first group (Family Members of EU / EEA citizens), the UK government is trying to take back control of the rights of those family members to live in the UK under EU law. In summary, unless those family members already have a right of residence in an EU Member State then it seems they will be subject to UK immigration law.

The document states they will exclude;

“from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State”

In such cases;

“the host Member State’s immigration law will apply”

Currently, such family members can use their EU free movement rights to move to the UK with their EU citizen spouse. This can be done regardless of where they live – in the EU or outside the EU. They can apply for EEA family permits from outside the UK and EEA residence cards in the UK.

In future, it seems the UK government will be allowed to insist that such applicants are treated under UK immigration law – which is much tougher. UK immigration law requires a minimum income test, proof of English language ability, greater proof of relationships, high immigration application fees and overall a much stricter regime.

In short – the applicant loses all the advantages of applying through the EEA Family Member route.

This will be a radical change and will especially affect the many EU citizens and their spouses living outside the EU.

So, for example – after June 2016, a Brazilian citizen married to a French citizen both living in Brazil, would have to apply under the UK immigration rules to move to the UK. This would mean that they would need to meet the UK immigration financial requirement. Perhaps by showing they have substantial savings or the French citizen might need to move to the UK first to work for 6 months. The Brazilian citizen would need to pass an English test and pay the high UK immigration application fees. Proof of a genuine relationship can also be required.

Currently – none of these requirements are in place when applying as an EEA family member.

The new rules might prevent applicants from moving together to the UK – requiring the EU citizen to move first and find employment paying above the minimum income level.

Obviously we are yet to see exactly what specific requirements will be introduced and a timetable for this. But the new rules will only be in place at some point after June so many applicants should consider whether they should apply now to move to the UK through the EEA route – such as applying now for EEA family permits or EEA residence cards.

Applicants who are classed as an EEA family member before June should be able to continue to stay in the UK through their EU Free Movement rights.

British citizens using EU law for family members (the Surinder Singh route)

The second group of applicants that are specifically mentioned in the UK / EU deal are those British citizens who use EU law to live in another EU member state and then return to the UK with their spouse. This is usually referred to the Surinder Singh route after the case that first established this principle of EU free movement.

The document states;

“Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules.”

So while there is nothing to suggest this route will be abolished, this seems to signal much greater scrutiny of such applications after June. The UK government already has a rigorous “centre of life test” in their EEA regulations for such applications – requiring the British citizen to show that they have moved the centre of their life to the other EU member state.

The document seems to be giving much greater powers to the UK to require longer periods of residence, more evidence of employment / self-employment and in effect trying to put the UK’s “centre of life test” beyond any legal challenge.

Summary

It is important to understand that the UK / EU deal is contingent on the result of the UK referendum on 23 June 2016 being a vote to remain in the UK.

The proposed changes above will then be implemented by the UK and the EU – with changes in the necessary Directives and Regulations as required.

The changes could take a little time to be phased in – the exact timetable and scope of the changes is still not clear.

EEA family members should seriously consider if they can move to the UK now under the current existing rules before the new rules are introduced.

If the referendum is not passed then we really are in unknown territory. This would result in the UK withdrawing from the EU (the Brexit scenario) and working out an agreement for the rights of EU citizens and their family members currently living in the UK. This would also have to include the rights of British citizens and their family members currently living in other EU member states (of which there are over 2 million according to recent estimates).