Brexit Survival Guide: Permanent Residence applications for EU nationals and their families

This is short guide for EU nationals and their family members living in the UK who want to do something about protecting their status as we head for Brexit.

It follows a Q&A format and tells you more about applying for Permanent Residence documents.

1. What can EEA nationals (and their family members) residing in the UK do ahead of Brexit?

Firstly, don’t panic. There has been no immediate change to your rights or status in the UK as a result of the referendum.

But now is a good time to take steps to protect your position.

You’re in the right place if you’re reading this. A number of other detailed guides are available from leading practitioners and I wholeheartedly recommend that you read those too.

As Theresa May pushes for a ‘hard’ Brexit and the government refuses to guarantee the rights of EU citizens and their dependents in the UK, there’s much uncertainty about what immigration controls the government will put in place following a possible Brexit in March 2019 and what consequences may follow.

There are some things you can do now that might reduce the considerable anxiety caused by the Brexit vote.

2. How can I help protect my status in the UK?

It’s advisable to get yourself documented. The reason is that those who can prove a right of residence come Brexit are perhaps more likely to benefit from whatever transitional arrangements the government puts in place (if any) to protect the legal status of EEA nationals and their family members who are already in the UK.

So if you haven’t already, you should apply to the Home Office for documentation to prove your entitlement to reside in the UK.

You may have acquired the right to Permanent Residence in the UK if you are:

• An EEA national who has resided in the UK continuously for a period of 5 years; or
• A non-EEA family member who has resided lawfully with an EEA national in the UK for a period of 5 years.

You don’t have to make an application in order to acquire the right. It’s automatically acquired under EU Law.

However, ahead of Brexit, it’s a good idea to obtain documentation from the Home Office to prove that you have the right to Permanent Residence in the UK.

Each application costs £65.

It’s also a necessary step before you can apply for British citizenship, if you intend to go down that route (see Question 9 below).

Eligible EEA nationals should apply for a Permanent Residence Certificate.

Eligible non-EEA family members should apply for a Permanent Residence Card.

3. What if I’ve been absent from the UK at various times during the 5 year period?

Your continuity of residence will only be broken by temporary absences of more than 6 months in each year. Longer absences may be permitted, but only for certain specific reasons.

Once you have acquired the right of Permanent Residence, it can only be lost by an absence from the UK of over 2 consecutive years.

4. I’ve been living in the UK for under 5 years. What should I do?

You can apply for a Registration Certificate if you are an EEA national and you are a ‘qualified person’ (either a worker, job-seeker, self-employed, a student or self-sufficient person).

Family members of a qualified person can apply for a Residence Card.

5. What do I need to do to prepare my application?

Before you apply, make sure you prepare your evidence carefully.

If you are applying for a Permanent Residence document, you need to show the Home Office proof that you / your family members / your sponsor have resided in the UK continuously for 5 years.

No single piece of evidence is conclusive.

The Home Office recommend that the documents should be spread evenly throughout the 5 years and come from a variety of sources and that you submit at least 2 documents for each year of residence. It’s advisable to submit significantly more documents than this in case there are any issues with your documents.

If you haven’t been keeping hold of copies of relevant documents, you should start doing so now. For example, this includes your payslips, P45s, P60s, utility bills, records of any public funds you have claimed (ie. Job Seekers Allowance, child benefit or tax credit, etc.), tenancy agreements or mortgage statements. Get a lever arch file or expandable folder and keep your records organised. This will make it easier to prepare your application.

If you are missing items in a series of documents, you may need to request the copies.

If you receive bank statements in online/electronic format only, ask your bank to stamp each page with their official stamp.

You must send original documents only or explain why you cannot do this.

6. How much detail do I need to provide in my application about my or my sponsor’s activities in the UK?

As part of the application, you should submit:

• a chronological narrative of how you / your family members / your sponsor have spent your time in the UK;
• a full travel history.

This can be copied and pasted into your application form, or alternatively submitted as a separate document.

Your narrative can be brief but in order to avoid delays to your application, you should cover all relevant details. Read the Home Office guidance carefully as it lists full details of the evidence they will expect to see.

It’s possible for you to qualify for Permanent Residence if your activities during the 5 year period have crossed-over different categories. For example, if you were a student for several years, then a job-seeker and then an employee you could count time spent in those three different categories towards the 5 years.

Just taking the category of ‘workers’, normally the following information would be required:

• if you are or were employed you need to provide the name and address of each employer, your gross salary (either per week, month or year), normal hours, start and end dates and your reason/s for leaving. In addition, the Home Office recommend that you obtain a letter from each employer confirming the same details, or if you cannot obtain the letter, that you explain why not, and provide alternative documents to prove the employment (ie. payslips, contracts of employment, letter of termination, P45s, etc.).

The requirements for students and self-sufficient persons are much wider and are spelt out fully in the Home Office guidance. Importantly, both require proof of comprehensive sickness insurance.

Your travel history should include the date you first entered the UK and details of all absences from the UK since you entered (ie. dates and durations).

7. Can I apply online?

Yes you can, unless you are:

• a family member or extended family member of a qualifying person; or
• a student or self-sufficient person who is either:
  • reliant upon a family member for financial support or
  • financially supports any other family members;

The online form is easier to use than the paper application forms (some of which are extremely long). However, you still need to print off the completed online application form and send this to the Home Office together with your original supporting documents and evidence.

8. Do I need to send my passport to the Home Office while my application is processed?

If you do not have a valid national ID card that you can send to the Home Office instead of your passport, you will need to submit your passport to support your application.

Some local authorities are offering a European passport return service for EEA nationals applying for a Registration Certificate or Permanent Residence document. You need to take your passport and application to specific local authority offices who will check and photocopy your passport, immediately return it to you and then forward all the documents to the Home Office on your behalf.

Bearing in mind that the Home Office is currently dealing with a larger volume of applications than usual and longer waiting times are expected, this new service should make it much more convenient for EEA nationals who do not have valid ID cards and who have to travel while awaiting the outcome of their applications.

The service is not offered to non-EEA nationals. It is available by appointment only and you have to attend your appointment within 5 working days of submitting your online form.

9. What if I’d like to become a British citizen?

Normally, you need to have lived in the UK for 6 years in order to use your Permanent Residence document to naturalise as a British citizen.

So if you have only lived in the UK for 5 years, you must wait for a further 12 months after obtaining your Permanent Residence document before you can apply to naturalise.

However, if your spouse is a British national, you can apply for British citizenship as soon as you have your Permanent Residence document.

While the application is relatively straightforward, there are two crucial issues to be aware of:

1. UK law permits British citizens to hold dual nationality. Some countries don’t. You may need advice from a lawyer familiar with the citizenship laws of the relevant country to advise you on whether naturalisation as a British citizen would result in you losing your previous nationality. This is a particularly relevant for non-EEA family members;
2. When an EEA national naturalises as a British citizen (and becomes a dual citizen), any EU free movement rights held by their non-EEA family members will be lost and they will therefore have no lawful immigration status in the UK at that point.

10. My case is complex – can you help with my application?

At the 36 Group, we have a team of specialist immigration barristers who may be able to help you. Get a fixed fee quotation for help with your application by filling out the form below.