Settled Status Mythbuster

Legal advice for EU Londoners about the EU Settlement Scheme

What's true and what's a myth?

There are many Brexit myths and misconceptions that we’ve tried to clear up in our mythbuster:

MYTH: “I have been here for over 20 years and everyone says I am going to be OK. The new Settlement Scheme is only for people who have arrived recently.”

You must apply, no matter how long you have lived in the UK, unless you have proof that you have Indefinite Leave to Remain (ILR) and that this is still valid.

If you have ILR it would be strongly advisable to apply under the EUSS scheme so to reengage with the Home Office and receive an updated status. If a person loses evidence of their ILR, and the Home Office has no record of it, they would find it extremely difficult to prove lawful residence after the deadline of the EUSS.

However, you might also wish to apply for Settled Status to obtain the additional rights afforded by the UK government, provided for in the immigration rules and in future legislation, such as the right to a five-year absence from the UK without losing your settled status and the right to be joined by eligible family members. Also, if you apply, you will have up to date proof of your residence rights and it may be useful given what happened to the “Windrush generation”.

To apply under the EU Settlement Scheme you need

  • a valid passport/ID and
  • if possible, your National Insurance number. This is the first automated step in the two step residence process by the Home Office to determine if you have been a resident in the UK, and therefore eligible to apply for pre-Settled or Settled Status

If you think that you may not have HMRC (HM Revenue and Customs) or DWP (Department for Work and Pensions) online records, make sure you find and keep documents that can prove your residence in the UK. Take a look at this handy checklist. If you are entering very close to the deadline you should provide evidence of entry, where this occurs you could ask for a ‘by request’ stamp from border control on arrival.

If the automated checks suggest pre-settled status although you have been resident for a consecutive 5-year period then you must challenge it.

MYTH: "I am married to a British citizen; I don’t need to apply”

Even if you are married to a British citizen, you still have to apply for Settled Status (or pre-Settled Status) and prove that you were resident in the UK before 31 December 2020.

MYTH: “My children were born in UK so they are British citizens by birth”

Not always.

If your child was born in the UK, but at the time of the birth neither parent was a British citizen or settled, then s/he was not born British.

However, children born in the UK with at least one parent who is already a UK citizen, or has Permanent Residence or Indefinite Leave to Remain when they were born, are British citizens automatically and do not need to naturalise or register. Some exceptions may apply to this. You can find out more information about whether a child might already be British.

If you are unsure, it may be good to seek advice from an OISC accredited immigration adviser or an  SRA regulated solicitor before proceeding with your application. You can also use the signposting database on our EU Londoners Hub, or www.eurights.uk.

MYTH: “I have a valid Permanent Residence (PR) document so I don’t have to apply for Settled Status”

To continue living in the UK after 30 June 2021 (or 31 December 2020 if the UK leaves the EU without a deal) you must apply for Settled Status.

You do not need to provide evidence of the length of your residence in the UK, since this was also a condition for your PR status, however, you may still be asked for this during the application process if you have been absent from the UK for more than 5 consecutive years.

Alternatively, you could consider applying for citizenship before 30 June 2021 (or 31 December 2020 if the UK leaves the EU without a deal), if you wish to do so and meet all the requirements. If you become British before the end of the transitional period, you will not need to apply under the Settled Status scheme.

MYTH: “If I apply and am granted pre-Settled Status this will be transformed to Settled Status automatically when I complete my five years' residence”

No, it will not.

You have to apply for Settled Status after you complete five years residence in the UK.

For example, if you applied under the Settlement Scheme after two years of living in the UK and were granted pre-Settled Status, you will have to apply again once you have reached five years of continuous residence (three years later) in order to receive Settled Status.

MYTH: “People who get pre-Settled Status will have less rights than people with Settled Status”

It is true that it may not affect your right to stay and work or study in the UK. However, it does affect your ability to come and go.

With pre-Settled Status you lose your status if you leave the UK for a period of 2 consecutive years, whereas with Settled Status you can be away for 5 years. In addition, your period of 'continuous residence' resets to 0 if you spend over 6 months abroad in any 12-month period with pre-Settled Status. This means you will start the clock again towards changing your pre-Settled Status to Settled Status.

If you have been in the UK for over five years, make sure you are granted Settled Status, rather than pre-Settled Status when you apply.

Furthermore, those granted pre-Settled Status still need to demonstrate they are exercising treaty rights to be entitled to some benefits. Read more about this here.

In the event of a ‘no deal’ Brexit, fees and financial support for EU students starting a course in 2019-2020 will remain the same but there is no clarity on what fee/loan status EU citizens enrolling from 2020-2021 can expect.

MYTH: “As an EU citizen, I can face removal after the UK leaves the EU”

You have until 30 June 2021 (or 31 December 2020 in a No Deal scenario) to apply for Settled or pre-Settled Status and nothing should change for you until then.

However, it is important for all EU citizens to apply for Settled Status - failing to do so will leave you undocumented after that date and will affect your rights to rent, to employment, to benefits and healthcare. While those with ILR and also those who are Irish are not required to apply it is recommended that they do as there are benefits to doing so, particularly for family reunification right later.

Ultimately this can lead to you losing your right to stay in the UK.

MYTH: “I may have difficulty renting accommodation in the UK after the UK leaves the EU”

Until 1 January 2021, you will continue to be able to prove your right to rent in the UK as you do now, for example by showing your passport or national identity card.

Therefore, there will be no change to the way EU, EEA and Swiss citizens prove their right to rent until 1 January 2021. This remains the same if the UK leaves the EU with or without a deal.

After this date, you may be asked to provide evidence of your right to rent in the UK by landlords.

People who have obtained Settled Status will not have a physical document to prove their right to reside, but rather a digital record for which you can obtain a link. The landlord can then check and confirm your status online.

MYTH: “My employer can end my employment contract after the UK leaves the EU”

Provided you apply for and obtain Settled Status or pre-Settled Status, your employment rights will not be affected and will be protected by the same laws as before, which are UK laws.

You have until 30 June 2021 to apply. In the case of a No Deal, you have until 31 December 2020 to apply, so there is no six-month grace period.

MYTH: “I won’t be able to stay if I make less than £30,000 per year”

There is no lower limit on income for Settled Status or pre-Settled Status applicants.

In fact you will not be asked to declare your income or confirm you are in employment. Therefore, you can apply even if you are unemployed and/or receiving benefits.

The £30,000 income requirement currently exists for certain migrants under the UK immigration rules. It has also been proposed as part of the immigration legislation for new immigrants after the UK has left the EU, but this is only a proposal and is not yet debated or approved by Parliament.

MYTH: “I’ll have to declare parking tickets as part of the criminality check”

No, simple traffic violations do not need to be declared.

You also do not need to declare ‘spent convictions’, warnings (‘cautions’) and alternatives to prosecution, for example speeding fines.

However, you will need to declare any serious convictions, which usually means convictions with a custodial (prison) sentence of 12 months or more, in the UK or anywhere else in the world. But if you have had any convictions, even suspended ones, it will be good to take advice from a competent legal professional before completing your applications. If you cannot afford advice from a competent legal professional it better to disclose the conviction in the application rather than making a mistake of not disclosing a relevant conviction. In the majority of cases it is unlikely to affect the outcome but failing to disclose a relevant offence may mean that the application will be refused on allegations of deception.

Failure to declare may also cause problems later, if and when you want to apply for British Citizenship.

Remember that you’ll still be eligible for Settled or pre-Settled Status if you’ve only been convicted of a minor crime.

If you have other convictions, this will be decided on a case-by-case basis. If you’ve been to prison, you usually need five years’ continuous residence from the day you were released to be considered for Settled Status.

MYTH: “Once I have my Settled Status I can leave the UK and return whenever I want”

Settled Status is technically a form of Indefinite Leave to Remain (ILR).

The normal length of period you can leave the UK with ILR is two years, but if you get ILR under the EU Settlement Scheme you will only lose your status if you are absent from the UK for a period of five consecutive years.

MYTH: “I can’t apply for the Settlement Scheme because I don’t have an Android phone”

The application for Settled Status is online and can be done from any device (eg laptop or smart phone). All applications go through three steps:

  • identity checking
  • residence checking 
  • criminality checking

Identity checking
This is easily done using the EU Exit: ID Document Check app which is now available on both Apple iPhone 8, 8 Plus or newer models and Android 6.0 and above.

Download on Apple iOS

Download on Android 

The app scans your passport or biometric ID document and verifies your identity by taking a photo of your face. This makes the process easier for you, but the scanning of documents and identity verification can also be done in one of over 50 dedicated centres. There is likely to be a charge for this and most require you to make an appointment.

You can also post your documents to the Home Office for verification and Digital Assist services can help you with the online aspect of the application process.

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