November 2020

Briefing for EU citizens: less common EUSS applications: Frontier workers, prisoners, extended family members by Charlotte Rubin and Chris Desira

In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme (EUSS). Under the Scheme, EU citizens will be given either pre-settled or settled status. For an applicant to the EU Settlement Scheme to receive either pre-settled or settled status, they will have to prove three key things: their identity, their suitability, and a period of continuous residence in the UK.

For most applicants, this will be relatively straightforward. This briefing focuses on three groups of applicants for whom proving these things will be slightly more complicated: frontier workers, people with a criminal sentence, and extended family members. Of course, many other applicants will find the EUSS confusing or hard to navigate, and numerous other vulnerable groups in society have been identified as at risk of failing to secure their rights. This briefing focuses on specific issues with these three groups to break things up a little.

The Withdrawal Agreement between the EU and the UK provides that frontier workers must receive documents certifying their status as soon as possible, so that they are not prevented from exercising their rights after the end of the transition period, and can easily demonstrate proof of those rights at the border. That is why the government is launching a frontier worker permit scheme on 10 December, so that frontier workers can make free applications to receive such a document. Although this is a welcome development, the scheme seems to be cutting it quite short as it opens a mere three weeks before the end of the transition period, with very little information available as to the qualifying criteria and precise application process. Surprisingly, there seems to be more information available for family members of frontier workers than for frontier workers themselves, as there seems to be little certainty about what exactly is required of them

As for EU citizens without a right of permanent residence whose residence is interrupted by a period of imprisonment, the Withdrawal Agreement states that the “conduct” of these citizens may have an effect on their application under the Scheme. “Conduct” here relates to actions taken by the affected citizen, rather than the outcome of the action such as a sentence of imprisonment, meaning it is not the time or severity of the prison sentence but of the conduct which is important in assessing the relevant citizen’s eligibility.

Appendix EU clearly states that continuous qualifying period cannot include a period of imprisonment. In fact, EU law stipulates that periods of imprisonment in the host Member State interrupt the continuity of residence required by Article 16(2) of the Free Movement Directive for the purpose of acquiring a right of permanent residence.

There will be situations where the conduct of the citizen is committed before the end of the transition period, and the conduct is not be serious enough to result in their removal from the UK, but their prison sentence will conclude after the end of the transition period. If this is the case, the only route to status under the EU Settlement Scheme would be if the applicant already had settled status before he committed the offence. If he had been in the UK for less than five years when the offence was committed, and does not have settled status, he will not be able to acquire it. A citizen cannot link periods residence in the member state that are dissected by a term of imprisonment which in this example, began before the end of the transition period.

The result is that a citizen who was in prison during the transition period, but does not meet the threshold for removal from the UK, cannot begin a continuous qualifying period to obtain EUSS status. They are highly unlikely to be able to obtain any other immigration status due to the restrictive nature of UK immigration law and would consequently face removal on the basis that they do not have any lawful residence after 30 June 2020.

Lastly, concerning extended family members, Appendix EU requires that durable partners and dependent relatives apply to the EUSS with a valid “relevant document". The definition of a relevant document is a document issued for under the EEA Regulations. It can be a family permit, a residence card or a permanent residence card. Important to note is that the relevant document must be valid (i.e. not expired or revoked), meaning that an extended family member who has been issued a document which has now expired is unable to apply to the EUSS and will receive an automatic refusal of status should they submit an application. In effect, this raises the financial bar for durable partners of EU citizens, as they are required to make a second application under the EEA Regulations to receive a valid relevant document and then make a third application for EUSS status. The application fee here is 65 pounds.

This fee is entirely avoidable. In fact, when an extended family member applies to the EUSS, the process assesses whether the family relationship continues to exist (or did for a 5 year period in the past). Therefore, it is available to the Home Office to assess the continuing family relationship of an extended family member applicant through the EUSS process, even where their relevant document has expired. The Home Office approach puts a disproportionate burden on these applicants not only financially, but also practically, as they have to evidence and re-evidence their family relationships which could be considered detrimental to the rights of their sponsoring EU citizens.

Once family members of EU nationals succeed in their application and get status under the Settlement Scheme, they are issued a physical document to prove their right to residency in the UK. This physical document is a privilege not granted to EU citizens, meaning that in practice, durable partners receive physical proof of their status when the EU citizens on whose application they depend do not.

If you require any advice on the EUSS as a member of one of these three vulnerable groups of EU citizens or otherwise, do not hesitate to contact us for advice.

Leaving Dublin behind: what does leaving the Dublin Regulation mean for the UK? By Charlotte Rubin

Since officially leaving the European Union (EU) on 31 January 2020, the UK has been navigating an 11-month transition period negotiated by Theresa May and later Boris Johnson. During the transition period, EU law still applies in the UK, even though the UK is no longer formally a member of the EU.

That transition period is set to end on 31 December 2020. On that day, various important changes happen automatically, because from 1 January 2021, EU law will no longer be directly applicable in the UK. For immigration purposes, the most widely discussed change following from that will be that on the 1st of January, free movement of people ends, and the rebranded points-based immigration system is coming into full force to replace it. Obviously, the end of free movement is a big deal. There will, however, be numerous other significant changes to migration as a consequence of Brexit. One such area is asylum.

Asylum regulation is based on a number of international, EU and domestic laws. The relevant international law is set out in the 1951 Refugee Convention, and the European Convention of Human Rights (ECHR). The applicability of those texts will not be affected by Brexit, the end of the transition period, or any other event to do with the EU, as their legal basis is not in EU law. Despite the ECHR’s name, it is not an EU treaty, and the Strasbourg human rights court is not an EU body – so these laws will continue to apply.

EU law, however, is a different story. Due to the Common European Asylum System, the end of the transition period will heavily affect individuals claiming asylum in the UK, as the EU law relevant to asylum will no longer be automatically applicable in the UK. Some of it will be repealed immediately and replaced by domestic law, such as Home Secretary Priti Patel’s infamous Immigration Bill implementing the points-based system and end of free movement in practice. Another piece of legislation set to be repealed is the Dublin III Regulation. The purpose of the Dublin Regulation is to determine which State is responsible for examining an asylum application. The legislation is marked down for immediate repeal because it is meaningless without cooperation of other EU member states.

In very simple terms, the Dublin Regulation allows the UK to return asylum seekers to another EU country if they passed their on their way to the UK. In less simple terms, Dublin III sets out mechanisms determine which country should assume responsibility of asylum seekers within their borders, and to return them to those responsible countries. The Regulation is intended to ensure quick access to asylum procedures and reduce double handling of asylum claims by different States.

Important to note is that Dublin III does not allow for the UK or any member state to return asylum seekers to their country of origin, or outside of the EU. It applies to asylum seekers within the bloc, and determines which member state is responsible for processing their claim. The Dublin III Regulation utilises a host of criteria to determine where an asylum seeker should claim asylum, ranging from family unity, to possession of residence documents or visas and irregular entry or stay. The latter has become something of a hot topic in recent months, as reports of migrants crossing the channel in small boats from France have risen, and inflammatory remarks from the government has led to much commotion. At some point, Home Secretary Patel stated she wanted the British navy to patrol the seas in order to send illegal channel crossers back to France. This idea was quickly dismissed, as it turned out that it would only be legal under international law if the country whose waters the migrants would be sent back to (in this case France) agreed to the return, but the narrative presented has remained the same.

Ms. Patel has frequently justified returning channel crossers to France on the idea that their asylum claims in the UK are “illegal” because they arrived in France first, and then entered the UK illegally. This is not exactly true. There are limits, legally, to the extent irregular entry can be used as a reason for transfer back to the first point of entry. For example, the principle can be outweighed by other primary considerations such as family unity. Additionally, a Member State will be responsible for a claim submitted by a person who has been living there for at least five consecutive months, even when that person first gained entry into the EU by an irregular crossing of a border in another Member State. So, if an asylum seeker entered the UK via France, but has been in the UK for over five months since, they cannot be returned to France and the UK will automatically assume responsibility.

In 2019, statistics indicate that 714 individuals were transferred into the UK based on Dublin III rules, and 263 were transferred out to another EU country. Numbers have been steadily rising since the Brexit referendum, indicating a push to complete as many Dublin III transfers as possible before the Regulation stops to apply.

The government has given no indication that it plans on introducing a post-Brexit successor to the Dublin Regulation. Instead, it has proposed two draft agreements with the EU which relate to certain specific aspects of the Dublin Regulation. On the one hand, the government is looking to come to an agreement on the transfer of unaccompanied asylum-seeking children for family reunion purposes, and on the other, it has proposed a readmission agreement for accepting returns of irregularly residing UK/EU citizens and third country nationals. Both of these proposals are much narrower than the Dublin Regulation allowed for.

None of these proposals have been accepted by the EU, and the Government has said that it might pursue bilateral agreements with individual Member States if it cannot secure EU-wide agreements. It is unclear whether these individual agreements would be compatible with the EU’s exclusive competence/power over migration policy, and so whether they will be possible at all. The end of Dublin III hence leaves a gap in UK immigration law that is unlikely to be filled before the ever-approaching end of the transition period.

Briefing for EU citizens: the Continuous Qualifying Period of residency by Charlotte Rubin and Christopher Desira

In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme. Under the Scheme, EU citizens will be given either pre-settled or settled status. To obtain pre-settled status (which gives EU citizens temporary residence in the UK for a limited period of five years), an applicant does not have to prove much: they must simply show that they have arrived in the UK before 31 December 2020. For settled status (which gives EU citizens permanent residence rights in the UK), it is a different story.

An applicant wanting to obtain settled status will have to demonstrate that they have been continuously resident in the UK for five years. What does that mean exactly? In this post, we have a look at the law which applies in this scenario to try and get a better idea.

The way Appendix EU to the immigration rules, which sets out the legal framework for the EU Settlement Scheme, defines continuous qualifying residence for the acquisition of permanent residence is based on the idea of a 6 month out of 12 months “rolling” residency. The definition of “continuous qualifying period” in Appendix EU states:

a period of residence in the UK and Islands…
(b) during which none of the following occurred:
(i) absence(s) from the UK and Islands which exceeded a total of six months in
any 12-month period [emphasis added]

Imagine a scenario where an applicant, Serge, moved to the UK from France in April 2016. Until June 2019 he only went home for a few weekends and holidays, so he does not have to worry about his absences for his first three years of residence. In July 2019, his fourth year of residence, however, Serge went back to France for the summer and was absent from the UK until the end of September (three full months). He then came back to London, until January 2020, when he went back to France. He was supposed to return to London in February, but ended up staying abroad until May 2020, facilitated by him working from home during the COVID-19 pandemic. This is an absence of four full months in the calendar year of 2020.

But Appendix EU does not work in calendar years. Rather, it analyses periods of residence on a 12-month rolling basis. As a consequence, Appendix EU would interpret the above-mentioned scenario to mean that Serge has broken his continuous qualifying period on account of combining the three months absence in year 4 with the four-month absence in year 5 resulting in a combined absence of seven months in a 12-month period. The drafting of the criteria does not allow the citizen to demarcate the absences into separate 12-month periods.

When it comes to COVID-19 related absences, the Home Office have said that they will be flexible, and consider it as an exception to the 6-month rule if need be. Serge might then be able to rely on this exception when he applies for settled status in April 2021. However, the validity of this exception is not guaranteed, but rather subject to Home Office discretion. In addition, not all applicants will be able to do the same

The Court of Justice of the EU has held that periods of continuous legal residence confer on EU citizens the right of permanent residence with effect from the actual moment at which they are completed. This means that the continuous period of five years legal residence that leads to the acquisition of the right of permanent residence is to be counted from the moment the EU citizen takes up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive.

In fact, the definition of “continuous qualifying period” in Appendix EU does not comply with provisions regarding continuous residence in the EU Free Movement Directive and the EU-UK Withdrawal Agreement. The rule from those legal instruments is that an EU citizen may have temporary absences not exceeding a total of six months within each year leading up to the acquisition of the right of permanent residence, and that each year starts on the anniversary of the date when the EU citizen took up residence in the host Member State in compliance with the residence conditions of the Free Movement Directive, meaning that absences in different years must not be added up.

It should be noted that the way the Home Office calculate qualifying residence for permanent residence under the EEA Regulations (implementing the Citizens’ Directive in domestic legislation), is not clear on this matter as there has been a change in Home Office guidance instructing case workers how to assess the continuous residence requirement. Former guidance stated that the Home Office would consider absence is based on a year 1 to 5 from when the EU citizen began their UK residence. Current guidance states that a six months absence in any 12-month period would break continuous residence without reference to calculating this on a year by year basis. Therefore, the current interpretation of continuous residence under the EEA Regulations is in conflict with Appendix EU. This could easily be remedied by changing the guidance back, and ensuring that EU citizens get the status they are entitled to.





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