After Brexit, the free movement of EEA Nationals to the United Kingdom ended. The entry and stay of EEA Nationals in the UK after 1 January 2021 are only allowed under the conditions of the UK Immigration Rules, either of those that transpose into UK law the provisions of the United Kingdom’s withdrawal agreement from the European Union, or of the standard immigration rules.
How can an EEA National or a family member of an EEA National emigrate to the UK after Brexit?
The United Kingdom and the European Union have agreed that EEA Nationals who lived in the UK on and immediately before 31 December 2020 will receive (not automatically, but on the basis of an application) a status that allow them to stay in the UK for a limited or unlimited period, depending on the circumstances of each applicant. It has also been agreed that certain family members of these EEA Nationals (i.e. those who were living in the UK on and before 31 December 2020, whom will hereinafter called “relevant sponsors”) can join them in the UK, receiving the same rights to live, work or study in the UK, regardless of whether or not those family members are EEA Nationals themselves or whether or not they lived in the UK before 31 December 2020. However, it has been decided that the only people who can join a relevant sponsor in the UK are the sponsor’s spouse (or “durable” partner), children and dependent parents, according to extremely complicated rules, often misunderstood by those who apply without the assistance of an immigration adviser. EEA Nationals and their family members who do not meet these conditions can still apply for a study, work or family visa, but using the standard routes, which have less permissive requirements than those negotiated by the European Union with the United Kingdom.
Settled Status based on applicant’s own residence in the UK
EEA Nationals and their family members who can prove a continuous residence in the UK for at least 5 years qualify to receive Settled Status, i.e. the right to remain in the United Kingdom for an indefinite period. Residence is “continuous” when there are no periods of absence from the UK which, cumulatively, exceed 6 months in any 12 month period of the 5 years of residence on which the application is based. Settled Status can also be obtained by those who live in the UK at the time of the application, but also by those who no longer live in the UK but have completed a period of continuous residence of 5 years before departure, and no more than 5 years has passed since the date of them leaving the United Kingdom.
Settled Status for relevant sponsors’ children
Children under the age of 21 of those relevant sponsors who have received Settled Status can also be granted Settled Status. However, it should be noted that a child born in the UK of a parent who has Settled Status does not need this status and should not apply for it, because such a child acquires British citizenship by birth, and a British citizen does not need permission to remain in the UK.
Pre-Settled Status based on applicant’s own residence in the UK
EEA Nationals who can prove a continuous residence in the UK of less than 5 years which started before 31 December 2020 qualify for Pre-Settled Status (i.e., the right to remain in the UK for a period limited to 5 years) based on their own residence. At the time of writing this text, in the summer of 2023, there are extremely rare cases where an EEA National resident in the UK immediately before 31 December 2020 and continuously after 1 January 2021 has not yet applied and been granted Pre-Settled Status.
Pre-Settled Status for relevant sponsors’ children
Children who do not qualify for Pre-Settled Status based on their own residence in the UK which started before 31 December 2020 and continued after 1 January 2021 may be granted Pre-Settled Status if their relevant sponsors (their parents) have met those conditions and have received Pre-Settled Status for this reason. However, the law makes a distinction between children under the age of 21, who only have to prove their relationship to the relevant sponsors, and children aged over 21 years of age, who must additionally prove that they are dependent (financially or medically) on their relevant sponsors.
Pre-Settled Status for relevant sponsors’ dependent parents
Parents who do not qualify for Pre-Settled Status based on their own residence in the UK immediately before 31 December 2020 and after 1 January 2021 may be granted Pre-Settled Status if their relevant sponsors (their children) have met those conditions and received Settled or Pre-Settled Status for this reason. However, the law requires parents to prove both their relationship with their children acting as sponsors and their dependence (financial or medical) on those relevant sponsors. Parents who are in good health and have sufficient financial resources to meet their essential living needs (in whole or in part) without the financial or other material support of the relevant sponsors, as well as those who do not have sufficient income but are financially supported by other people than their relevant sponsors, will not qualify for Pre-Settled Status by virtue of their relationship with their children.
Pre-Settled Status for relevant sponsors’s partners
Spouses of relevant sponsors where the marriage took place before 31 December 2020 can also receive Pre-Settled Status. Spouses of relevant sponsors where the marriage took place after 1 January 2021 can receive Pre-Settled Status only if the partners have lived together in a relationship akin to a marriage for at least two years before 31 December 2020 (or for less than that, but there is other significant evidence of the durable relationship being formed before that date, for example where the partners have a child born before 31 December 2020). Durable (unmarried) partners of relevant sponsors also qualify for Pre-Settled Status, if the durable relationship has been formed before 31 December 2020, as explained above.
What can those who do not meet the requirements for Pre-Settled Status do?
If they are married to their sponsor, they can apply for a Partner Visa, but the sponsor must prove that they have income above a certain threshold, and the partner who wants to get the visa must pass an English language test.
If they are skilled workers, have a job offer from a licensed sponsor and have passed an English language test, they can apply for a Skilled Worker Visa.
If they want to study at a UK university, they can apply for a Student Visa.
I am here to help
If you want to apply for Settled or Pre-Settled Status under the EU Settlement Scheme and need specialist advice, feel free to contact me. Please note that I am an accredited immigration adviser, not an employee of the UK Visas and Immigration. I charge fees for the advice provided.
