As the foreign spouse of an EU citizen residing in the UK, you will need to apply for a new type of immigration status by 30 June 2021 to enable you to continue living in the UK lawfully after this deadline date.

The following guide looks specifically at the residence rights of non EU spouses of EU citizens living in the UK post-Brexit.

Rights of non-EU spouse of EU citizen in UK: The transitional period

On 31 January 2020 the UK formally left the European Union (EU) under a revised withdrawal deal, entering into a transitional phase until the end of the year. The purpose of this phase is to enable further UK-EU negotiations to take place, to determine the future relationship between the UK and the EU.

However, the UK government has already introduced a new EU Settlement Scheme to enable EU citizens residing in the UK, together with their direct family members, to legalise their residence at the end of the transitional period. The scheme is now open and is free of charge to apply.

In the interim, EU citizens and their family members can continue to live lawfully in the UK under EU law. This includes the spouse of any EU citizen, including where the spouse is a national of a country outside the EU, EEA or Switzerland.

Rights of non-EU spouse of EU citizen in UK: The settlement scheme rules

The new EU Settlement Scheme provides a clear basis – consistent with the withdrawal agreement reached with the EU, as well as with the citizens’ rights agreements made with the other EEA countries and Switzerland – for resident EU, EEA and Swiss citizens, together with their family members, to apply for permission to continue to reside in the UK post-Brexit.

You can apply under the EU settlement scheme if you are the spouse or civil partner of an EU, EEA or Swiss citizen currently living in the UK. The EEA includes the EU countries and also Iceland, Liechtenstein and Norway.

Even if you have a UK permanent residence document you will still need to apply under the scheme. If you have indefinite leave to enter or remain in the UK you can continue to live in the UK without applying to the EU Settlement Scheme, although it may be advisable to do so to for up-to-date proof of your residence.

If you have indefinite leave to enter or remain and choose to apply under the scheme, subject to meeting all the other conditions you will be granted ‘indefinite leave to remain under the EU Settlement Scheme’, also known as settled status. This means you should be able to spend up to 5 years in a row outside the UK without losing your settled status – or 4 years if you are the spouse of a Swiss citizen – instead of 2 years with the indefinite leave to enter or remain you have now.

Rights of non-EU spouse of EU citizen in UK: The two types of status

If your application under the EU Settlement Scheme is successful, one of two types of immigration status will be granted:

  • Limited leave to remain, known as pre-settled status
  • Indefinite leave to remain, known as settled status

You will not be asked to choose which status you are applying for under the scheme. The type of status you will be granted will depend on how long you have been living in the UK when you apply.

If you have lived in the UK for 5 years or more on a continuous basis, you will usually be granted settled status. This will allow you to live and work in the UK for as long as you like. You will also be able to apply for British citizenship if you are eligible under the rules.

To have the necessary 5 years’ continuous residence means that for 5 years in a row you have been in the UK, the Channel Islands or the Isle of Man for at least 6 months in any 12-month period. The exceptions are as follows:

  • A single period of absence of up to 12 months for an important reason such as pregnancy, childbirth, serious illness, study, vocational training or an overseas work posting
  • Any period of absence of compulsory military service
  • Time you spent abroad as a Crown servant, or as the family member of a Crown servant
  • Time you spent abroad in the armed forces, or as the family member of someone in the armed forces.

If you have lived in the UK for less than 5 years you will be granted pre-settled status, allowing you to stay in the UK for a further period of 5 years. However, you must have started living in the UK by 31 December 2020 when you apply. Having accrued a total of 5 years’ continuous residence you can then apply for settled status, although you must do so before your pre-settled status expires.

In the event that you will acquire 5 years’ continuous residence at any point prior to the deadline, you can wait to apply until the necessary number of years have been accrued, so that if your application is successful you will be granted settled status without having to apply for pre-settled status first.

Rights of non-EU spouse of EU citizen in UK: The application process

The EU Settlement Scheme is a relatively simple and straightforward process, designed to be much easier than a typical immigration application. If you are the spouse or family member of an EU, EEA or Swiss citizen, in most cases you can submit your application online using an Android device or iPhone 7 or above, although you will need to send your documents via post.

It is important to note that there are various categories of applicant who are not permitted to apply online, but must instead make an application via post. In particular, you will need to use a paper form if you are not an EU, EEA or Swiss citizen and you are applying as the family member of a British citizen who also has EU, EEA or Swiss citizenship and who lived in the UK as an EU, EEA or Swiss citizen before getting British citizenship.

To make an application under the EU Settlement Scheme as a non EU spouse of an EU citizen you will need the following documents:

  • Proof of your identity, for example, a valid passport, a biometric residence card or biometric residence permit
  • Proof of your residence in the UK, unless you have a valid permanent residence document, or valid indefinite leave to remain in or enter the UK
  • Proof of your relationship to your family member from the EU, EEA or Switzerland, for example, a marriage or civil partnership certificate
  • Your spouse’s EU Settlement Scheme application number, if they have already applied under the scheme.

For applicants with a biometric residence card granting you permanent residence in the UK you will not have to prove you have 5 years’ continuous residence. However, if you do not have a biometric residence card, you will need proof of how long you have lived in the UK.

You will also be asked to make an appointment at a UK Visa and Citizenship Application Services (UKVCAS) service point to provide your biometric information, ie; a scan of your fingerprints and a digital photo.

It is also important to note that if you apply before your EU spouse, you will also need to provide evidence of their identity, nationality and residence. As such, the easiest way is to link your application to that of your EU spouse. This means you do not have to prove how long they have lived in the UK. Your family member will be given an application number when they apply which you can use to link your application to theirs, so that your applications are considered together.

Rights of non-EU spouse of EU citizen in UK: The criminal record checks

As part of the application process under the EU Settlement Scheme you will be asked to declare any crimes you have been convicted of or you are waiting to go to court for in the UK or overseas. The Home Office will check both UK and international criminal databases to ensure you have not committed serious or repeated crimes, and that you do not pose a security threat.

If you fail to disclose or lie about your criminal record or a crime that you have been charged with your application could be rejected. Your application could also be rejected if you have any relevant prior criminal convictions or are otherwise considered unsuitable.

If you have only been convicted of a minor crime, you will still be eligible for settled or pre-settled status. Further, you may still be granted permission to stay in the UK even if you have other convictions, although this will be decided on a case-by-case basis.

Rights of non-EU spouse of EU citizen in UK: The post-transitional period

The rights and status of EU, EEA and Swiss citizens living in the UK will remain the same until 30 June 2021. However, at this point EU law will cease to apply, taking with it any automatic right of residence, even for those who had previously acquired permanent residence.

As such, anyone who has not successfully applied for their new immigration status under the EU Settlement Scheme by that date will no longer be protected by the previous freedom of movement rights under EU law. Failing to apply will mean that you end up with no legal right to live and work in the UK.

For families looking to live together in the UK post-Brexit, it is important to bear in mind the proposed deadlines. In particular, to be eligible for pre-settled status under the new scheme, any family member from outside the EU, EEA or Switzerland needs to be living in the UK by 31 December 2020 at the latest.

If you are the foreign spouse of an EU citizen and you have not come to the UK by that date, you can only join your EU spouse in the following circumstances:

  • Your EU spouse has been granted pre-settled or settled status under the EU Settlement Scheme
  • Your relationship began before 31 December 2020, or before 31 December 2025 for the spouse or civil partner of a Swiss citizen
  • You remain a spouse or civil partner of an EU citizen.

In circumstances where you are unable to join your EU spouse in the United Kingdom under the EU Settlement Scheme, you may still be able to come to the UK in a different way, for example on a family visa.

If you are the spouse of a national from Norway, Iceland, Liechtenstein or Switzerland who is living in the UK, there is no deadline for when you can join them if both your relationship began before 1 February 2020 and you are still in a relationship when you apply.

Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

Anne Morris is a corporate immigration and employment lawyer based in London. Anne is the Founder of DavidsonMorris and specialises in employment & immigration law and human resources and global mobility consultancy.