Category Archives: Blog

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5 Key points of EU citizens’ rights for residence in the UK following Brexit

London skyline

Since the result of the referendum last summer, the UK government has published a policy paper which sets out UK government’s offer to EU citizens and their families in the UK.

There is no need for EU citizens living in the UK to do anything now. There will be no change to the status of EU citizens living in the UK while the UK remains in the EU. However, many EU citizens, quite rightly are concerned with the uncertainty of the Brexit negotiations and the final arrangement between UK government and European Union, and the following guidance is aimed to help those EU citizens who are working or have family member in the UK in understanding the latest development and their rights during the negotiation and transition period of Brexit.

The cut-off date will be agreed during the negotiations between the UK Government and European Union but as it stands the UK government has made it clear that it shouldn’t be earlier than 29 March 2017 (the date Article 50 was triggered) or later than the date the UK leaves the EU.

Under the latest policy papers at the time of this article, the UK government’s offer for EU citizens is:

  • People who have been continuously living in the UK for 5 years will be able to apply to stay indefinitely by getting ‘settled status’. That means these citizens will be free to live in the UK, have access to public funds and services and apply for British citizenship.
  • People who arrived before the cut-off date, but won’t have been in the UK for 5 years when we leave the EU, will be able to apply to stay until they have reached the 5 year threshold. They can then also apply for settled status.
  • People who arrive after the cut-off date will be able to apply for permission to remain after the UK leaves the EU, under the future immigration arrangements for EU citizens.
  • Family dependents who are living with or join EU citizens before the UK’s exit will also be able to apply for settled status after 5 years in the UK. In these cases the cut-off date won’t apply.

It is the UK government’s intention that EU citizens with settled status and temporary permission to stay will continue to have broadly the same access as they currently do to healthcare, education, benefits and pensions.

The UK government plans to launch a scheme for people to apply for settled status before the UK leaves the EU, so people who would like to apply can do so at an early stage.

The UK government is currently looking at what the future immigration system for EU citizens arriving after the cut-off date will look like and have provided an outline of the system as follows (however, please note that this is just an outline of the proposal and is subject to change depending on the negotiations of the UK and EU and is only for the guidance purposes):

  1. Applying for a residence document

All EU citizens and their families in the UK will need to apply to the Home Office for permission to stay. Once UK leaves the EU, this will be required by UK law.

The type of application one will need to make will depend on your circumstances, when you moved to the UK and how long you’ve lived in the UK.

The proposal is that the UK government will by 2018, introduce a new Home Office online application system for the EU citizens, including those who already hold a permanent residence document under current free movement rules for a residence document demonstrating their new settled status.

The residence document will prove (for example, to employers or public service providers) that you have permission to continue living and working legally in the UK.

  1. Timeline for applications

At the point the UK leaves the EU, EU citizens won’t be required to leave the UK if they don’t yet have a document under the new scheme. There will be a period of permission to remain in the UK covering all EU citizens and their families. This is called a ‘grace period’. The grace period will give the EU citizens in UK time to apply for and receive their new residence document.

The grace period will last for a fixed period of time (to be confirmed during negotiations) of up to 2 years but if the EU citizen has not received a document confirming their new immigration status by the end of this period they will no longer have permission to remain in the UK.

  1. Permanent residence status under EU law

The settled status application process for EU citizens will be separate from the current one for documents confirming EU permanent residence status. Permanent residence status is linked to the UK’s membership of the EU and so will no longer be valid after UK leaves EU.

If you already have a document certifying permanent residence, you will still need to apply for the new settled status document when it is introduced by the Home Office.

  1. EU citizens who arrive in the UK after the cut-off date

If you arrive before the date the UK leaves the EU, regardless of when the agreed cut-off date is, you won’t have to leave the UK when UK leaves the EU. The grace period of permission to remain in the UK will apply to you in these circumstances.

However, if you would like to stay in the UK after the grace period ends you must apply for permission to stay (‘leave to remain’) before that point.

Details of the rules around leave to remain for EU citizens who arrive after the cut-off date are being agreed and will be published by the Home Office in due course.

  1. UK employers and EU citizen employees

If you are an EU citizen working in the UK or a UK business that employs an EU citizen, you don’t need to do anything now. There will be no change to the rights and status of EU citizens living in the UK before UK leaves the EU.

After the UK’s exit from EU, EU citizens will need to apply for a document to prove they have permission to legally work in the UK.


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The status of EU/EEA nationals in the UK as a result of the referendum explained in 5 simple points

UK EU

As the UK Government is still going through the Brexit legislation, when to trigger Article 50 and start the formal process of leaving the EU, the UK very much remains a member of the EU throughout this time, and until Article 50 negotiations have concluded.

It is a general consensus that when the UK do leave the EU, the arrangements will be worked out for in the lines that the legal status of EU & EEA nationals living in the UK, and that of UK nationals in EU member states, will be properly protected.

Therefore there is no need to panic and following the rumours about the rights of the EU and EEA nationals have been affected at present or anytime soon.

The following 5 points will assist you to get a clear understanding of the immigration status and rights of EU and EEA nationals in the UK

  1. EU nationals who have lived continuously and lawfully in the UK for at least 5 years automatically have a permanent right to reside in the UK. This means that they have a right to live in the UK permanently, in accordance with EU law. There is no requirement to register for documentation to confirm this status.
  2. EU nationals who have lived continuously and lawfully in the UK for at least 6 years are eligible to apply for British citizenship if they would like to do so.
  3. EU nationals who have lived in the UK for less than 5 years continue to have a right to reside in the UK in accordance with EU law. EU nationals do not need to register for any documentation in order to enjoy their free movement rights and responsibilities and it is open to the EU/EEA national if they decide to apply for a registration certificate for their convenience as there has been no change to government policy or processes.
  4. Non-EU family members of EU or EEA nationals must apply for a family permit if they wish to enter the UK under EU law, and they do not have a residence card issued by a member state.
  5. Extended family members of EU nationals must apply for a registration certificate (if they are an EU national) or residence card (if they are a non-EU national) if they wish to reside in the UK.

There has been no change to the right of EU nationals to reside in the UK and therefore no change to the circumstances in which someone could be removed from the UK.

EU / EEA nationals can only be removed from the UK if they are considered to pose a genuine, present and sufficiently serious threat to the public, if they are not lawfully resident or are abusing their free movement rights.

Passports

Registration Certificate

You are usually qualified if you are a citizen of a European Economic Area (EEA) country or Switzerland and you are one of the following:

  • working
  • studying
  • self-employed
  • self-sufficient
  • looking for work

You must provide proof that you are qualified.

You can also add a close or extended family member to your application. An extended family member must also be one or more of the following:

  • dependent on the qualified person before coming to the UK – and will either continue to be dependent on them or live in the same house as them in the UK
  • living in the same house as the qualified person before coming to the UK – and will either continue to live with them or be dependent on them in the UK
  • cared for by the qualified person because they have a serious medical condition

Residence Card

You may be able to apply for a residence card if you are from outside the European Economic Area (EEA) and you are the family member, or extended family member, of an EEA national.

You don’t need to apply for a residence card as a family member but it can:

  • help you re-enter the country more quickly and easily if you travel abroad
  • show employers you are allowed to work in the UK
  • help prove you qualify for certain benefits and services

You must apply for a residence card or have a valid EEA family permit if you are an extended family member.

You can apply for a document to prove your right to live in the UK if you are a citizen of a European Economic Area (EEA) country or Switzerland. If you satisfy the Home Office eligibility criteria than you will be eligible for a permanent residence document if you have lived in the UK for 5 years (or earlier in some situations – for example, if you retire). You can apply for a registration certificate if you have lived in the UK for less than 5 years. You may also be eligible as the partner, child or family member of someone from the EEA or Switzerland.

Extended family members of EU nationals must apply for a registration certificate (if they are an EU national) or residence card (if they are a non-EU national) if they wish to reside in the UK.


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5 Steps for Landlords to carry out the immigration right to rent checks

From 1 December 2016, landlords or agents in England could be charged with a criminal offence if they know, or have reasonable cause to believe, that they are letting to an illegal migrant.

Landlords of properties throughout England must check that someone has the right to rent before letting them a property.

KB Law Solicitors regularly advise landlords, property agents on the new immigration right to rent checks and assists them in navigating through the document checks to ensure that the property is let to the tenants who have legal right to stay in the UK with valid permission.

From our experience in assisting our clients, we have compiled an easy to follow stop-by-step checks for the landlords.

1. People you have to check

You must check that your tenant or lodger can legally rent your residential property in England.

Before the start of a new tenancy, you must check all tenants aged 18 and over, even if:

  • they are not named on the tenancy agreement
  • there is no tenancy agreement
  • the tenancy agreement is not in writing

If the tenant is only allowed to stay in the UK for a limited time, you need to do the check in the 28 days before the start of the tenancy and follow up again near the expiry of that limited time on their permit.

2. How to carry out a check

  • Check which adults will use your property as their main home (your ‘tenants’).
  • Ask them for original documents that prove they can live in the UK, i.e. a biometric residence permit or a birth certificate with a Council Tax bill.
  • Check that the documents give them the right to rent your property.
  • Check that each tenant’s documents are genuine and belong to them, with the tenant present.
  • Make and keep copies of the documents and record the date you made the check.

You can be fined up to £3,000 for renting your property to someone who isn’t allowed to rent property in England.

You must check your tenants’ original documents to ensure that:

  • the documents are originals and belong to the tenant
  • their permission to stay in the UK has not ended
  • the photos on the documents are of the tenant
  • the dates of birth are the same in all documents (and are believable)
  • the documents are not too damaged or don’t look like they have been changed
  • if any names are different on documents, there are supporting documents to show why, such as a marriage certificate or divorce decree

If the tenant is arranging their tenancy from overseas, you must see their original documents before they start living at the property.

If the tenant does not have the right documents

You must use the landlord’s checking service (you will require the tenant’s Home Office reference number to use the service) to check whether the tenant is allowed to rent without the right documents if:

  • the Home Office has their documents
  • they have an outstanding case or appeal with the Home Office
  • the Home Office told them they have ‘permission to rent’

You will generally get an answer within 2 working days.

Don’t rent a property to someone in England if they don’t have the right documents and the landlord’s checking service tells you they aren’t allowed to rent.

You can get further help with your rent check from the Homeoffice by calling the Landlord’s helpline  on 0300 069 9799.

 

3. Make a copy of documents

When you copy the documents:

  • make a copy that can’t be changed, such as a photocopy or a good quality photograph
  • for passports, copy every page with the expiry date or applicant’s details (such as nationality, date of birth and photograph), including endorsements, for example a work visa or Certificate of Entitlement to the right of abode in the UK
  • copy both sides of biometric residence permits
  • make a complete copy of all other documents
  • record the date you made the copy
  • Keep copies of the tenant’s documents for the time they’re your tenants and for one year after.
  • Make sure you followdata protection law.

4. Follow-up checks

You must do a follow-up check to make sure your tenant can still rent property in the UK if there is a time limit on their permission to stay.

You can get a fine if you don’t do a follow-up check and your tenant’s permission to stay ends.

Do the follow-up check just before the date that’s furthest away out of:

  • the end of your tenant’s permission to stay in the UK
  • 12 months after your previous check
  • You don’t have to do a follow-up check if there’s no time limit on your tenant’s permission to stay in the UK.

If your tenant fails a follow-up check
You must tell the Home Office if you find out that your tenant can no longer legally rent property in England after doing a follow-up check.

You could be fined or sent to prison for up to 5 years if your tenant fails a follow-up check and you don’t report it to the Home Office.

5. Agents and subletting

You can ask any agents that manage or let your property to carry out the check for you. You should have this agreement in writing.

If a tenant sub-lets the property without you knowing, they’re responsible for carrying out checks on any sub-tenants. They will liable for any civil penalties if they don’t do the check correctly.

If you would like to speak to a member of our team at KB Law Solicitors in respect of how we can assist you in carrying out immigration right to rent checks, please call us on 020 3409 3737 or e mail us at info@kblawsolicitors.com.


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