Our Immigration service has been established for many years and we regularly attend at Dungavel House to meet with clients and assist with Bail Applications and/or Asylum/Human Rights claims.

We recently acted for an American client who was detained by the Home Office despite being granted Bail to continue residing with his Scottish born wife in the Glasgow area he was removed to London and held in intolerable conditions awaiting to be deported to the USA the next morning despite the Court of Session accepting an application for a Judicial Review Hearing. We were told by a Home Office official that Scotland was not in the UK and so the decision of the Scottish Courts did not matter. Our client was later released after further representations were made. Details can be found in the Daily Record Article at  https://www.dailyrecord.co.uk/news/scottish-news/husband-kept-room-blood-faeces-21703908

Settled Status in the UK

EU citizens and their family members already in the living in the UK by 30 December 2020 have to register under the settled status UK scheme to retain their rights to remain indefinitely in the UK after 30 June 2021.

The UK left the EU on 31 January 2020. From 1  January 2021, anew immigration system will be in place which will require EU citizens coming to the UK to apply for a visa.

Who should apply for EU settled status in the UK?

You should apply for EU settled status if you are an EU, EEA or Swiss citizen, or a family member of an EU, EEA or Swiss citizen, living in the UK.

This includes those who were born in the UK but are not a British citizen; those with a UK permanent residence card; relatives of an EU, EEA or Swiss citizen (including Irish citizen) who does not need to apply; those who have EU, EEA or Swiss nationality with a British citizen family member.

You do not need to apply for settled status if you are an Irish citizen, if you have been granted indefinite leave to enter or remain.

Settled status for non-EU family members

Non-European family members of EU citizens  – such as a spouse, civil partner, long term partner, dependent child or grandchild, and dependent parent or grandparent – may also be able to apply for the status, on the basis of their relationship to the EU national, where the following applies:

• the non-EU relative used to have an EU, EEA or Swiss family member living in the UK but this relationship is no longer subsisting, for example due to separation or death
• the non-EU individual is related to a British citizen and lived outside the UK in an EEA country together
• the non-EU individual is related to a British citizen who also has EU, EEA or Swiss citizenship and who lived in the UK as an EU, EEA or Swiss citizen before getting British citizenship
• the non-EU relative is the primary carer of a British, EU, EEA or Swiss citizen
• the non-EU relative is the child of an EU, EEA or Swiss citizen who used to live and work in the UK, or the child’s primary carer

Applying at the same time as the EU relative is encouraged and likely to lead to faster processing. In addition to evidencing their EU relative’s status, non-EEA family members will also need to submit evidence of their own identity, residence in the UK and relationship to the EU citizen.

Non-EEA relatives living overseas will still be able to join an EU citizen resident in the UK until 29 March 2022, provided the relationship existed on the date of Brexit. Future children are also protected.

What is pre-settled status?

Those who have lived in the UK for 5 years or more on a continuous basis should be granted settled status. If, however, you have lived in the UK for less than 5 years, you will usually be granted pre-settled status. To be eligible for pre-settled status you must have started living in the UK by 31 December 2020, or by the date the UK leaves the EU without a deal.

In the event that you are granted pre-settled status, you will be allowed to remain in the UK for 5 years, after which you can apply for settled status.

What counts as ‘continuous residence’?

Settled status is available to individuals who can show 5 years of continuous residence in the UK before 31 December 202o.

To be continuously resident in the UK, it generally means you must have been living in the UK for at least 6 months out of any twelve-month period claimed towards your five-year total.

There is no restriction on the number of absences permitted during the qualifying period, provided that the total period of absence does not exceed six months in any twelve-month period.

There are also some exceptions to the six month rule, for example, a single period of absence of more than six months but which does not exceed twelve months is permitted where this is for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting.

If you do not have, or are unable to show you have, 5 years’ continuous UK residence, you may be granted pre settled status, conferring you 5 years’ leave to remain, after which you would qualify and apply for the full, indefinite settled status.

Applying for settled status

The application process is completed online or via an iPhone or Android app. It comprises three stages:

1. Identity – each applicant will need to verify their identity and nationality, either through their passport, national identity card or biometric residence permit.
2. Eligibility – each applicant will need to prove that they are resident in the UK. Here, employment and benefit records will be checked on an automated basis to establish continuous residence, although you will be able to upload additional evidence to fill any gaps.
3. Suitability – criminal checks will be undertaken of any applicant over 18, where anyone guilty of serious or persistent criminality either in the UK or overseas, may have their application under the new scheme denied.

If you are applying as a family member of an eligible EU citizen from outside the EU, you will also need to provide proof of your relationship to that family member, for example, a birth, marriage or civil partnership certificate.

When applying, you will either need to scan your document and upload your photo using the ‘EU Exit: ID Document Check’ app using an Android phone, or an iPhone 7 or above, or send your document in the post and upload your photo using the online application.

Applying for settled status for a child

Children under the age of 21 should apply for settled status where they are EU, EEA or Swiss citizens, or where they are not an EU, EEA or Swiss citizen, but their parent is.

Applications for children can be linked to their parents’ application. Evidence of your relationship to the child will be required with the application.

Where a parent’s application is approved, any linked children should be granted the same status.

As with adult applicants, where a child does not have 5 years’ continuous residence when they apply, they would usually be granted pre-settled status, provided they were living in the UK by 31 December 2020. With 5 years under pre-settled status, they would then apply for full settled status.

If the child has not yet attained 5 years’ continuous residence but will do so before 30 June 2021, you may wait and apply for full settled status at the 5-year mark, rather than applying for pre-settled status.

How much does settled status UK cost?

There is no application fee for those applying for settled status.

If you currently hold UK permanent residence, transferring to settled status will also be free of charge.

If you have accumulated five years’ residence and are applying to transfer from pre-settled to settled status under the scheme, again there will be no charge.

What is the deadline to apply for settled status?

The settled status scheme closes on 30 June 2021.

This is the deadline for applications for those resident in the UK by the end of 2020.

Under current guidance, those who fail to register before the deadline will become illegally present in the UK.

Do I have to apply from the UK?

No, your application can be made from outside the UK.

Does settled status expire?

A commonly asked question is, how long is settled status valid for? Settled status grants indefinite permission to remain in the UK. However, should you leave the UK for a period of more than 5 years, your settled status will be lost.

If you hold pre-settled status, the period of absence is 2 years, at which point your status is lost.

Can I apply for a British passport with settled status?

To apply for a British passport, you have to hold British citizenship. EU citizens looking to naturalise as a British citizen should first apply for settled status before making their application for citizenship.

What if I already have UK Permanent Residency or Indefinite Leave to Remain?

If you currently hold UK permanent residence, you can apply to transfer to settled status. This is also free of charge.

If you already have indefinite leave to remain or enter, you will not be required to apply for settled status. However, you may consider this option since settled status permits absences of up to five years without loss of status, whereas ILR is limited to two years out of the country. Take advice on your circumstances.

What if I have not lived in the UK for 5 years?

For EU citizens and their family members who arrive in the UK by 31 December 2020 but will not have been continuously resident for five years, will instead be granted pre-settled status. This will enable them to stay until they have reached the five-year threshold, at which stage they can apply for settled status.

Check settled status in the UK

If you are granted settled or pre-settled status, you will be sent a letter confirming the decision. Note that this letter cannot be used to prove your status.

To check or prove your status, you need to use the Home Office’s online system.

If you have applied as a non-EU citizen, you will be issued a document as proof, if you do not already have a biometric residence permit.

What will my rights be with settled status?

Those granted either settled status or pre-settled status will continue to enjoy the same entitlements to work, study and access healthcare, pension and other benefits in the UK as per the rules prior to the transition period.

Children born in the UK to those who have been granted settled status will be British citizens.

In addition, existing close family members living overseas will be able to join you in the UK in the future in the same way as they can now, provided your relationship with them began before 31 December 2020 and you are still in the relationship when they apply to join you.

A close family member includes a spouse, civil partner, durable partner, as well as a dependent child, grandchild, parent or grandparent. This includes the child, grandchild, parent or grandparent of your spouse or civil partner.

Refused settled status?

If your application has been refused, or if you have been granted pre settled status instead of settled status, you may have options. The decision letter from the Home Office should give you the reasons for the decision, and explain if you can either apply again, ask for the decision to be looked at again as part of an administrative review, or appeal the decision.

For example, if you applied for pre-settled status by mistake, you should be able to apply to again for full settled status, or if you have new information or evidence to prove you should be granted full and not pre-settled status, you should apply again with this new supporting documentation.

Appeals are only available if you applied after 11pm on 31 January 2020 and were given pre-settled status instead of settled status. If you applied before this time, you can’t appeal but you can apply again or ask for an administrative review. A written appeal costs £80 or an appeal hearing costs £140, which is refundable if you win your appeal.

Need assistance?

Flanagan & Co is a law firm specialising in UK immigration. We help individuals with their UK immigration needs, and can guide and support you through any Home Office process, including an application to secure your rights to remain in the UK under settled status. If you have any questions, please contact us as soon as possible

Settled status UK FAQs