On face value, 'EU Settled Status' and 'Permanent Residence' may sound as though they provide the same rights to live and work in the UK indefinitely, but as with many aspects of immigration law, the devil is in the detail. At present, there are two ways by which EU nationals can remain in the UK free of immigration control; 1) by obtaining a Permanent Residence card or 2) by acquiring settled status under the EU Settlement Scheme. As the end of the Brexit extension gets nearer, it is becoming increasingly important for EU nationals to make the right decision regarding their status in the UK if they have not already done so. In this article, we will outline the difference between Pre-Settled Status, Settled Status, and Permanent Residence, and which you should consider based on your needs.
The EU Settlement Scheme (EUSS) was launched in January 2019 to provide a way for eligible EU, EEA, and Swiss citizens (we will use these interchangeably in this article) living in the UK to remain (i.e. it confers the right to reside) when freedom of movement comes to an end when the Brexit transition period expires on 1st January 2021.
Under this scheme, EU citizens will be given Settled Status if they have been in the UK continuously for five or more years. Those who have not yet reached the five-year mark will receive Pre-Settled Status, which will give them another five years to gain full Settled Status.
Settled Status means that the individual has the right to live, work, and remain indefinitely, free of immigration control. It also means that the holder can access public funds (e.g. benefits), and after 12 months, apply for British citizenship.
The Permanent Residence Card Scheme pre-dates the EU Settlement Scheme and also provides the right to reside in the UK free of immigration control. To be eligible for permanent residence, an EU citizen from outside of the UK must have been working, self-employed, self-sufficient, studying, or looking for work (also referred to as exercising treaty rights) in the UK for five or more years.
One of the key limitations of this scheme is that residence cards will not be valid after 31st December 2020. The UK Government website currently states that EEA citizens and family members of EEA citizens do not need to apply for permanent residence, and encourages the use of the EU Settlement Scheme instead.
In most circumstances, EU nationals living in the UK who wish to remain should apply for the right to reside under the EUSS. Not only is this the most common route used by EU citizens to secure their right to reside, but the legal status provided by this scheme also will not expire at the end of 2020. The EUSS application process is also much faster and straightforward and is free of charge (as opposed to £65 per person for a residence card).
That said, there is an important reason why you may wish to consider applying for a residence card. Because a residence card is backdated, you may be able to apply for British Citizenship sooner. This backdating happens because individuals do not need to apply for permanent residence; it is gained automatically after five years. Hence assuming you gained your automatic permanent resident status over a year ago (i.e. you have not been technically subject to immigration control for at least a year), then you can apply for British citizenship without delay. Those in this situation can effectively save themselves a year to acquire citizenship using this route compared to the EUSS, which only grants the right of permanent residence when it is given to the applicant.
If your intention is to acquire UK citizenship and you have only lived in the UK for five years or thereabouts, there may be no advantage of applying for a residence card. This is especially so because the requirements for the residence card are stricter, requiring applicants to prove they have been exercising their treaty rights in the UK. Appendix EU which details the EUSS policy, on the other hand, does not include a requirement for EEA nationals in the UK to prove they have been working, studying, or self-sufficient. But the most important consideration if you are not going to secure citizenship by the 30th June 2021, you will have to apply under the EU Settlement Scheme anyway, if you wish to remain in the UK.
If you are yet to reach the five year period required for full EU Settled Status, but you will by 30th June 2021, you can either apply for Pre-Settled Status now and Settled Status later, or wait until you have passed the five years, and apply immediately for Settled Status. Some may be uncomfortable with leaving their application under the EUSS rather late and might prefer to have some level of assured status now, in the knowledge it can be upgraded later.
Final words
If you are an EU citizen currently approaching six years in the UK and your intention, as it is for many individuals and families in your circumstances, is to remain here permanently, you will have to assess whether you are better to apply for citizenship or EU Settlement first. This will depend on whether you are keen to secure citizenship as soon as possible. If you are in any way unsure of your options and which is best given your circumstances and those of your family, it is highly recommended that you seek the advice of immigration Solicitors as soon as possible. While there is nearly a year until the EUSS closes for applications, the sooner you can secure your rights to reside in the UK, the better for everyone concerned.
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