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EU Settlement Scheme

Overview

What happened on 1 January 2021?

The transition period and free movement ended on 31 December 2020.  Until 11pm on 31 December, EEA nationals could travel to the UK with their European passport or identity card and remain here indefinitely so long as they register under the EU Settlement Scheme (see below).  From 1 January 2021, EEA nationals require a visa to live and work in the UK.

What, if anything should EEA nationals currently in the UK be doing?

EEA nationals who are here in the UK already and intend to stay permanently must register under the EU Settlement Scheme.

What is the EU Settlement Scheme (EUSS)?

The EUSS was introduced in January 2020 to allow EU nationals and their family members to apply to continue living and working in the UK after 1 January 2021.

Applications have to be made by 30 June 2021 and if the application is successful they will be given either settled or pre-settled status.

Why is the date 31 December 2020 important?

Only people who began living in the UK by 11.00pm on 31 December 2020 can apply under the EUSS.

Why is the date 30 June 2021 important?

The EUSS closes on 30 June 2021.  Anyone who was resident in the UK by 31 December 2020 must submit their application under the EUSS by 30 June 2021, otherwise they will not have the right to remain in the UK after this date.

What if I don’t apply under the EUSS by 30 June 2021?

You have to apply by 30 June 2021 otherwise you will lose your right to live and work in the UK.

There are some grounds on which discretion can be exercised to allow late applications but given that the EUSS will have been open for over 18 months by that time, there is little excuse to not be able to apply on time.

What is the difference between settled and pre-settled status?

Settled status is granted to those who have lived in the UK continuously for 5 years and if granted, allows you to continue living and working in the UK indefinitely.

Pre-settled status is granted to those who haven’t yet lived in the UK continuously for 5 years and so they are given the right to remain in the UK for a further 5 years.  The logic is that you will then be able to convert this into settled status once you have reached 5 years in the UK in total.

If you don’t yet have 5 years’ continuous residence but will reach 5 years before the EUSS closes on 30 June 2021, it is best to wait and apply once you have reached 5 years.  This way you will only need to apply once and obtain settled status from the outset.

Can pre-settled status or settled status expire?

Pre-settled status is granted for a limited period of time which allows the holder to reach 5 years in the UK and then to apply to convert this into settled status.  If the individual is unable to convert their pre-settled status into settled status, for example because they have spent more than 6 months in any 12 month period outside the UK (see below) they cannot renew their pre-settled status and so it will lapse on the expiry date.

In addition, pre-settled status is lost if you spend more than 2 consecutive years outside of the UK and settled status is lost by spending 5 consecutive years outside of the UK.

It can also be lost if you no longer meet the eligibility criteria, for example in relation to criminal offences.

Do holders of settled or pre-settled status need to update this when they move house or if they get married and change their name?

There is no requirement to reapply or update their status but individuals registered under the EUSS are required to maintain up to date personal details online with the Home Office.  When the application is granted, you are given access to your own personal UK Visas and Immigration account and you are required to keep your personal details up to date which are your mobile phone number, email address, name, identity document and address.

Do Irish citizens have to apply under the EUSS?

Irish citizens are not required to apply under the EUSS and can live and work in the UK using their Irish passport.  This is because free movement between the UK and Ireland is not governed by the EU but a separate agreement.

If the Irish citizen has family members in the UK who are not Irish or British, they will need to apply under the EUSS however.

If eligible, should I apply for an Irish passport?

If you can obtain Irish citizenship there may be the option to hold dual-nationality and you could then use your Irish passport to evidence your right to work in the UK.  However unlike under the EU Settlement Scheme, non-EU family members of Irish nationals would not have the right to live and work in the UK unless they applied for a visa.

What if I have permanent residence or indefinite leave to remain?

Both of these statuses grant the holder the right to remain in the UK on a permanent basis and will have been granted under the old systems in place before the EUSS was introduced.

Anyone with a valid permanent residence document will need to apply under the EUSS by 30 June 2021 to convert this to settled status.  If they don’t, on 30 June 2021 their permanent residence will cease to be valid and they won’t have the right to remain in the UK.

Anyone with indefinite leave to remain however won’t need to apply under the scheme and this will remain valid after 30 June 2021.

They may want to consider applying anyway to convert this to settled status however because ILR is lost after 2 years’ absence from the UK whereas settled status is not lost until 5 years’ absence from the UK.

Are British citizens affected by the UK leaving the EU?

They are affected in many ways however their right to live and work in the UK is unaffected.  This is the case even if they are an EEA national who has acquired British citizenship.

Can EEA nationals become British citizens?

Yes. Once they have held permanent residence or settled status for at least 12 months, they can apply to naturalise as a British citizen.  Depending on their nationality, they may or may not be required to renounce their European citizenship and there may also be tax implications that they should consider before making such an application.

Can individuals still travel overseas after 1 January 2021 for business?

Yes, but they need to check the entry requirements of the country they are travelling to.  For example, they may need to show that they have at least 6 months on their current passport and may need to provide evidence of their return flight.

Individuals visiting the UK for work will either need a visitor visa if they are carrying out limited activities, such as coming to the UK for meetings or will need a work visa if they are coming to be employed

Application

Who should apply under the EUSS?

Generally speaking, you should apply under the EUSS if:

  • you’re an EU, EEA or Swiss citizen; or
  • you are the family member of an EU, EEA or Swiss citizen, but you yourself are not an EU, EEA or Swiss citizen; and
  • you began residing in the UK prior to 11.00pm on 31 December 2020.

If your circumstances are not straightforward, it is recommended that you contact a member of the immigration team for support.

What do I need to evidence for the application?

The application requires you to provide evidence of three things:

  1. Your identity – to prove that you are an EU citizen or the family member of an EU citizen. This requires you to give your passport, national ID card or BRP. If you’re submitting a digital application, you can upload copies of your documents electronically either online or via mobile app, alternatively the documents can be posted or local council offices can assist with scanning and certifying documents for you. You also have to submit a photo of yourself and provide information such as name, address, National Insurance number etc.
  1. Residence in the UK – you have to provide evidence that you’ve been residing in the UK and how long for. If you have given your National Insurance number, they will carry out an automated check of UK tax and benefit records and provide instant results.  If you’ve been working and paying tax for the last 5 years you won’t need to provide any documents as this will be sufficient.  However if there are gaps or insufficient data, you’ll need to provide copies of documents like P60’s, bank statements, council tax bills, university certificates and so on. They look at the 5 years immediately prior to the application and you can spend up to 6 months in any 12 month period outside of the UK so you only need to provide evidence that you’ve been in the UK for at least 6 in every 12 months.
  1. Criminal record – as part of the application you also undergo a criminal record check and have to disclose details of any criminal convictions.
Do I have to have been living in the UK to apply?

Yes. As part of the application you are required to complete a self-declaration confirming that you have not been absent from the UK for a period of more than 6 months.  This is the case even if the evidence provided is sufficient to show you have been in the UK the entire 12 month period e.g. receiving wages from a UK Based employer through a UK payroll.

What does it mean to have continued residency of 6 months in any 12 months?

As part of the application you must be able to evidence that you have spent at least 6 months in any 12 month period living in the UK.  If you have been outside of the UK for more than 6 months in total (either in a single period of absence or more than one period of absence) you may be able to rely on one of the following exemptions as the Home Office will disregard:

  • a single period of absence of more than 6 months but which does not exceed 12 months, where this is for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting;
  • any period of absence on compulsory military service;
  • any period of absence on a posting on Crown service or accompanying a person on a posting on Crown service; and
  • any period spent working in the UK marine area.
Due to the covid19 pandemic I have spent more than 6 months outside of the UK, can I still apply for pre-settled status or settled status?

UKVI has published guidance on how absences from the UK due to covid19 will be treated in relation to EUSS applications. Your continuous residence period may not be affected if you have been affected by covid19 public health restrictions, such as absence from the UK due to travel restrictions.

If you have been absent from the UK for a single period of more than 6 months, but not more than 12 months, during your 5 year continuous qualifying period due to being ill with covid19, and you were unable to return to the UK because you were ill or in quarantine, that absence will not cause you to break your continuous qualifying period.

If you are a student who was studying in the UK and are studying outside the UK because of covid19, that absence will not cause you to break your continuous qualifying period, where it is for a single period of more than 6 months but not more than 12 months, during your 5 year continuous qualifying period.

You are allowed to have a single absence up to 12 months for an important reason which includes serious illness and study but this does not include self-isolation unless you were under quarantine conditions (including being ill with covid19 or living with someone who was ill with covid19 or vulnerable).

However, any absence(s) that exceed 6 months but is not more than 12 months in total in any 5 year continuous qualifying period where covid19 was not a factor will still break the continuous residence period unless there was another important reason for the absence.

Where there is more than one absence exceeding 6 months, this will always break your continuous residence period no matter what the reason for it, including if you are prevented from returning to the UK as a result of covid19.

How do I apply?

The easiest way to apply is online here, although those who can’t apply online can apply by post.

How much does it cost to apply?

It’s free to apply.

How long does it take for the application to be processed?

It usually takes around 5 working days for complete applications to be processed if no additional information is needed.  If additional information is needed, they contact you and it can take up to a month for applications to be processed.

Dependants

Can family members of EEA nationals apply?

Family members of EEA nationals who are also living in the UK can apply under the EUSS.  This is the case even if they are not EU nationals themselves.

For the purpose of the application, a family member is a spouse, civil partner, unmarried partner in a subsisting relationship, children, grandchildren and great grandchildren under the age of 21, dependent children over the age of 21, dependant parents, grandparents and great grandparents and other dependant relatives.

In addition, close family members can join the EEA national in the UK after 1 January 2021 and apply under the EUSS before it closes on 30 June 2021, so long as they can prove as part of their application that their relationship existed prior to 31 December 2020.

A close family member is a spouse, civil or unmarried partner, dependent children and grandchildren and dependent parents and grandparents.

The situation is slightly different for Swiss nationals in that they are able to bring their family to the UK until 31 December 2025.

If I am due to marry an EEA national in 2021, can they then apply under the EUSS?

That depends entirely on when the relationship with the EU national started. If it began prior to 31 December 2020 and they can evidence this, then yes, they can apply under the EUSS.  However if the relationship started in 2021, they can’t apply under the EUSS and would need to make an application under the UK’s new immigration system to remain in the UK.

Do children need to apply?

Yes they do. They must submit their own application themselves or the parent can submit it on their behalf.  For these purposes a child is someone under the age of 21.

What if a child is born to or adopted by an EEA national who has pre-settled or settled status?

Children born or adopted by an EEA national who has pre-settled status will be automatically eligible to register for pre-settled status.

If the parent has been granted settled status before they have or adopt a child, the child will automatically become a British citizen and so there is no need to make any application under the EUSS.

Right to Work Checks

How do I evidence my right to work to my employer?

The documentation that you provide to your employer to prove your right to work in the UK will depend on whether you have registered under the EUSS.

Individuals who have registered under the EUSS do not receive a formal document showing that they have settled or pre-settled status but instead their status is shown on their online immigration account.

From this account they can generate a code which they provide to their employer. This allows the employer to log on, view their status and download or print this as evidence of their right to work.

Individuals who haven’t registered under the EUSS will still be able to evidence their right to work by providing their European passport or national identity card. Family members who aren’t EEA nationals should provide their ID as well as evidence of their relationship with the EEA national.

The employer may also ask for evidence to show that you started living in the UK on or before 31 December 2020 as this will show that you are eligible to continue living and working in the UK, even if you haven’t yet applied under the EUSS yet.

Can my employer ask me for evidence that I have applied under the EUSS?

Not until 1 July 2021. Employers cannot require workers or applicants to show their status under the EUSS until after 30 June 2020. It is your responsibility to make an application and there is no requirement for you to inform your employer whether you have made an application or the outcome of the application.

If a I cannot evidence my settled or pre-settled status after Brexit, can my job offer be retracted?

A job offer can be retracted if you cannot evidence that you have the right to work.  If this happens between 1 January and 30 June 2021, you do not have to evidence your settled or pre-settled status and so retracting a job offer on this basis could entitle you to pursue a discrimination claim.

Disclaimer

Given the fast pace of change, we would stress that this information is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

As a hub, we have included references to articles and explainers from third parties. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.