Although the UK ceased to be a member of the EU on 31 January 2020, the transition period arrangements mean that EU citizens can still apply for leave to remain under the EU Settlement Scheme even if they move to the UK after that date, as long as they take up residency in the UK by 31 December 2020 (to be precise, before 11pm on that date).
I am aware, from discussions on the internet and questions at meetings, that some EU citizens have wondered whether they could travel to the UK before the end of 2020 and stay in the UK temporarily, perhaps for a very short period, with the idea of acquiring status under the Settlement Scheme as a type of ‘insurance policy’. The intention is not to live in the UK at that stage, but to be able to use that status to secure a right to reside in the UK at some future date if they wished or needed to do so.
In my view, those who are thinking about such a tactic need to understand that it might not succeed and, in the worst case, could have serious consequences.
The rules on pre-settled status
It is true that under Appendix EU of the Immigration Rules, which put into effect the citizens’ rights provisions of the Withdrawal Agreement, a qualifying EU citizen can move to the UK any time before the end of the transition period on 31 December 2020. But those rules also make it clear that someone must have completed a “continuous qualifying period in the UK” to be eligible for the EU Settlement Scheme.
For those who are applying for pre-settled status, that will be a continuous qualifying period of less than five years, which will of course have to be before the end of the transition period. The rules do not specify any minimum length, so that period could indeed be very short.
It should be noted, though, that Annex 1 of Appendix EU defines a “continuous qualifying period” as being a “period of residence in the UK and Islands” (with minor exceptions). Exactly what is meant by “residence” is not defined in Appendix EU, but it seems clear that a stay in the UK which could not be regarded as “residence” would not meet the necessary definition for it to be a “qualifying period”. For that reason, it would not give someone a basis on which to apply for status under the EU Settlement Scheme.
What counts as a “period of residence”?
How rigorously the Home Office would apply such an interpretation of the term “residence” in individual cases cannot of course be predicted. I suggest, however, that the shorter and the more temporary a person’s stay in the UK is, the greater the possibility that stay would run the risk of not being regarded as residence.
Take somebody who arrives as a tourist to take part in Edinburgh’s Hogmanay celebrations on 31 December 2020 (if there are any this year, of course), stays in a hotel for a couple of nights, and returns to their EU member state on 2 January 2021. They then do not return to the UK until 29 June 2021 (the deadline for applying). That person might well find that the Home Office does not regard that period as giving them a basis to apply for pre-settled status.
Another case where residence may well not be established is where somebody comes to the UK, at any time before the end of the transition period (not necessarily towards its end), makes arrangements with a friend or acquaintance to sign a tenancy agreement to sublet a room, but then doesn’t actually live there and instead returns to their EU member state for several months. Many other scenarios could no doubt be envisaged.
That does not mean that someone who moves to the UK before the end of the transition period in order to make themselves eligible for status under the EU Settlement Scheme, but at the same time maintains their residence in an EU member state because they haven’t yet made a decision about where they want to reside in the longer term, would necessarily be regarded as not having become resident in the UK from before the end of the transition period. Nor does it mean that someone who does genuinely move to the UK before 11pm on 31 December could not succeed in obtaining pre-settled status (although I do not think moving to the UK so close to the deadline would be a good idea). Each case will have to be considered on its own circumstances.
Gaming the system has its risks
At the end of the day, the key question will be whether or not a stay in the UK, however short, could genuinely be considered as being residence. The more likely that the period of residence in the UK could be regarded as being artificial, bogus or a sham, the greater the possibility that a person who relied upon it could find their application for status under the EU Settlement Scheme being rejected.
Worse, if such an applicant had concealed the true facts of the situation when applying for status under the Settlement Scheme, and that deceit is discovered at a later date — perhaps many years later — any status which had been granted might then be cancelled.
*This article was originally published in Free Movement on 29 September 2020