The ultimate outcome of the negotiations surrounding the UK’s departure from the EU is still unclear. However, as things currently stand, it is the government’s intention that the current free movement rights will cease at some point on or around 31 December 2020. There are a number of persons who can apply after this cut-off date but they are few and it should be assumed that the application
Anyone currently relying on EEA law for residence should strongly consider making an application for limited or indefinite leave to remain as soon as possible. This includes:
- All EEA citizens (including the EU, the EEA, and Switzerland) living in the UK without also having British citizenship; even those with permanent residence.
- Their family members from other countries; even those with permanent residence.
- Non-EEA citizens who have retained the right of residence, even those with permanent residence.
- Primary carers of British citizens, even those with permanent residence.
- Turkish citizens under the Ankara Agreement, who have not yet obtained indefinite leave to remain.
It generally does not include Irish citizens but does include the non-EEA and non-British family members of Irish citizens.
An application is likely to be refused if it is made by a person who is subject to a deportation or exclusion order; or a person who makes false representations in support of an application; or who is subject to an EEA removal order.
A person will be granted indefinite leave to remain if:
- They are an EEA citizen, or a family member of an EEA citizen, or a former family member with retained rights of residence; and they either have documented evidence of permanent residence or indefinite leave to remain; and they have not been absent from the UK for a period of five years or more since the granted of permanent residence or ILR.
- They are an EEA citizen, or a family member of an EEA citizen, or a former family member with retained rights of residence; and they have exercised treaty rights in the UK (usually by working) for five continuous years or more, and they have not been absent from the UK for a period of five years or more since that period finished.
- They are an EEA citizen who has acquired the right to reside on retirement (which usually requires continuous work for at least one year before retirement and 3 years residence in the UK) and they have not been absent from the UK for a period of five years or more since retirement.
- They are a bereaved partner of an EEA national exercising treaty rights at the time of their death, and they have not been absent from the UK for a period of five years or more since the date of death.
A family member of a British Citizen who qualifies under the Surinder Singh route will normally be granted indefinite leave to enter.
An applicant will be granted limited leave to remain if they are an EEA citizen, or a family member of an EEA citizen, or a former family member with retained rights of residence; or with derivative and/or Zambrano rights of residence; but have not yet qualified for indefinite leave to remain. Such a person will be eligible to apply for indefinite leave to remain once they have worked or otherwise qualified for residence for a five year period.
The rules are different for migrants under the Ankara Agreement. The route is being wound up and new applications or applications for an extension will be impossible after 31 December 2020. All that will remain possible is for persons currently within the system to apply for indefinite leave to remain.
Such a person will qualify for ILR after they have spent a total of 5 years in the UK under the Ankara Agreement, Tier 2, or as a Work Permit Holder; and once they have passed the requisite knowledge of English and knowledge of life in the UK tests; if they “have been able to support any family members with them without recourse to public funds” and there are no general grounds for refusal. Partners and children will be able to apply for ILR in line.
