Helena Sheizon

The timeline

The UK officially left the EU on 31 January 2020 but both sides agreed to keep things going without changes until 31 December 2020. This period between 31 January and 31 December 2020 is somewhat misleadingly called a transition period.

From 1 January 2021 until 30 June 2021 we are in the so called grace period. Although to the naked eye the “grace period” may look like “transition” period (and that’s what it is in practice) it is important to stick to the set terminology or there will be no end to confusion.

Settled and pre-settled status

All EU nationals who wish to enjoy the remains of the pre-Brexit freedoms must apply for a settled or pre-settled status. Settled status is for those who have lived in the UK for a continuous period of five years, pre-settled status is for those who have not lived in the UK for five years but were here before the end of the transition period (i.e. before 31 December 2020) and have not been out of the UK for more than six months since.

• The application for pre-settled or settled status is made online and the outcome of the application is confirmed by email and can be checked electronically. You can leave the country while the application is being processed – it will not affect its outcome.

EU nationals eligible to a pre-settled status

In order to be eligible for pre-settled status, the EU national has to show that they had a right of residence initiated before the end of the transition period. The right of residence may be another confusing term as it doesn’t actually mean residence – in a sense of having a home, a job or any stable connection.

The right of residence could have been initiated by a short one-day visit. Literally, a day trip from the continent to shop in Waitrose and return would trigger the right to apply for a pre-settled status. However, you will have to provide evidence that you made the trip – it can be a boarding pass, a bank statement showing a UK based transaction, or a bill showing that you were present in the UK on the day. The day is important as it has to be before the end of the transition period (before 31 December). The residence right thus triggered is not lost for six months. In other words, if an EU national visited the UK for Christmas in 2020 and left the UK on 26 December, they have until 26 June to come back to the UK and until 30 June to make an application for pre-settled status.

Last chance

Residence rights can only be initiated before the end of the transition period. The grace period is the final chance to apply for an immigration status. Using the boat trip metaphor, it is the last chance to buy a ticket for those who managed to jump on the boat before it sailed off.

EU nationals who have been granted pre-settled status but have been out of the UK for six months after the date on which the status was granted can make a second application for pre-settled status before 30 June. In terms of the boat trip, I will call it the last chance to upgrade the ticket. This would be to protect the EU national right to a settled status further down the line – at the end of the five years with a pre-settled status.

EU Settlement Scheme after the grace period

The EU Settlement Scheme will remain open for applications for settled status after 30 June for those who successfully applied for pre-settled status before 30 June and have spent a continuous period of five years in the UK. Absence from the UK for more than six months cumulatively in any 12 month period will break continuity of residence. It will not invalidate the pre-settled status already granted but will not lead to a settled status at the end of the five-year period. It is therefore ever so important to keep a track of all your absences from the UK and if you are unable to restrict them to the allowed threshold, think of alternative arrangements down the line.

What if you missed the deadline

The consequences of missing the deadline for EU nationals who have been resident in the UK before the end of the transition period have not yet been fully explored. From a legal point of view, it is an utterly grey area. Potentially, there may be a difference in the status of EU nationals who entered the UK during the transition period, i.e. between 31 January and 31 December 2020, and have not applied for pre-settled status, and those who have lived in the UK for years and acquired permanent right of residence before 31 January 2020 but failed to apply for settled status before 30 June 2021.

Ironically, EU nationals who came to the UK after 31 January 2020 would be more aware of the complications posed by Brexit and more alert to the immigration requirements and EU settlement scheme than those who have lived in the UK for as long as they remember and do not suspect that the deadline applies to them just as much as to the recent newcomers.

The story of Giovanni and Giovanna is a speculation on the position of EU nationals who have failed to convert their permanent right of residence into settled status. Hopefully, this account will never translate into reality. But it is the more important to bring it up and keep the story fictional.

• Helena Sheizon is founder and managing director of Kadmos Consultants.