Freedom of Movement After March 2019

The concept of freedom of movement has changed since its first introduction. The Treaty establishing the European Economic Community (1.1.1, 2.1.5 and 2.1.4) signed in 1957, prescribed the free movement of workers and freedom of establishment, and thus individuals as employees or service providers. In 1992, the notion of EU citizenship has been introduced with the Treaty of Maastricht prescribing the right of persons to move and reside freely within the territory of the Member States as a right to be enjoyed automatically due to the pure fact of being an European citizen.

The Legal reference in this case are Article 3(2) of the Treaty on European Union (TEU); Article 21 of the Treaty on the Functioning of the European Union (TFEU); Titles IV and V TFEU; Article 45 of the Charter of Fundamental Rights of the European Union.

The White Paper published on 19th December 2018 substantially establishes the phasing out of the free movement and the introduction of a strict immigration policy for European nationals who want to enter the UK after 31 December 2020.

It is essential having a breakdown of the important deadlines and understand what will happen during the “transition” or “implementation” period, namely between 30 March 2019 and 31 December 2020.

Specifically:

  • 30 March 2019: settled and pre-settled status applications will become fully available

  • 31 December 2020: deadline to enter the UK on this scheme

  • 30 June 2021: deadline to make an application for settled or pre-settled status

Settled and pre-settled status applications will replace the current application for a registration certificate and residence card and Permanent Residence and will be fully available from 30 March 2019. EU nationals will have time to enter the UK and benefit from the free movement "transitional scheme" until 31 December 2020. EU nationals and their family member will have time to make an application for pre-settled and settled status until 30 June 2021. After that date, the immigration policy will be stricter and EU nationals will not be allowed to enter the UK unless they satisfy specific employment requirements (Tier 2 route will be available to EU nationals). During the "implementation" period, the process will be mainly online, although the government announced the intention to provide also a paper application form.

In terms of supporting documents, applicants will need to provide proof of identity and nationality and enrol their “facial image”. Applicants who are in possession of a biometric document issued under EEA Regulations, will be able to enrol a facial image by uploading online a passport photograph digitally supported. In all other cases, applicants will need to enrol their fingerprints and have their photograph taken in a post office branch or UK Visa and Citizenship Application Service (UKVCAS) centres.

Bearing in mind that the identity documents could be uploaded online only if they have a chip. Otherwise, applicants will be required to post the Home Office the documents which will be returned presumably before a decision has been made.

The striking new is that no more evidence of exercising treaty rights will be requested, as the Home Office will conduct their own checks with HMRC and DWP. Applicants will be only required to provide evidence of residence for 5 continuous years, regardless if they have been exercising treaty rights as worker or self-employed or students. Only if there are no records with HMRC and DWP, it will be under the applicant’s responsibility to upload evidence of activity for the 5 relevant years.

The cost for the applications will essentially remain the same, with slight amendments as follows:

  • £32.50 for children under the age of 16

  • £0 for

    • those who already have valid indefinite leave to remain, and have not been absent for two consecutive years since

    • those who already have a document certifying permanent residence, and have not been absent for more than five consecutive years or lost their right because a deportation order was made against them

    • those who have been granted pre-settled status and are applying for settled status after April 2019

    • children in care

  • £65 for all other applicants

Previous tests and ambitious expectations seem to indicate that the future processing time will be roughly three days. A physical document will no longer be issued, but digital support will be used instead.

Finally, those applying after 30 March 2019, will have a statutory right of appeal, whilst applicants who made an application before, will only have the possibility to request an administrative review if the application is refused.