On 04 March 2021 the Home Office published the latest Statement of Changes to the Immigration Rules and the accompanying explanatory memorandum. The Statement of Changes amend Appendix EU and Appendix EU (family permit) in additional a number of other immigration routes. Some the changes will take place on 06 April 2021, the remainder will happen on 01 July 2021 once the Grace Period has concluded. For an overview of general changes please read our previous blog post on the topic. This post will focus on the changes that apply to EU citizens in the UK after Brexit and the EU Settlement Scheme specifically.
Many of the changes to the EU Settlement Scheme (EUSS) introduced here are technical changes which will not affect the overall qualifying conditions of the Scheme. The two most important changes relate to an apparent clarification on the late applications process and the rules to allow family members of EEA citizens who were resident before the end of the transition period to qualify for EUSS status even if the EEA citizens themselves do not. The current wording of the rules would have barred these family members from obtaining status themselves once the Grace Period concluded on 30 June 2021. This appeared to offend the Withdrawal Agreement between the UK and the EU and would have created unjust outcomes for affected family members.
Regarding late applications to the EUSS, the rules will be changed to enable a person who relies on having reasonable grounds for missing the deadline applicable to them to make one application to the EUSS, so that the Home Office can consider those grounds in assessing their eligibility for EUSS status. Contrasting this with the current wording, which indicated there would be a two-part approach to assessing late applications where the first stage would be to assess the reason for the late application and the second stage being substantive consideration of the applicant’s eligibility for EUSS status, subject to stage 1 being successful, this is a significant improvement. By clarifying in the rules that the late application reasons and EUSS eligibility criteria will be dealt with in a single application, the Home Office is bringing the EUSS in line with the way that the wider immigration system operates.
Applying on time (before 30 June 2021) is still paramount, as the current position of the Home Office is that late applicants to the EUSS do not have any lawful residence rights until they are granted status. Those who apply late, even where they are found to have good reasons, will therefore still face the impact of the hostile immigration environment in the period between 30 June 2021 and the date of the positive outcome of their application (assuming they meet the eligibility and suitability requirements).
Regarding suitability requirements for the EUSS, the Statement of Changes amends the suitability provisions of the EUSS and the EUSS family permit after the end of the transition period, which ended on 31 December 2020. The new rules enable an application to be refused (and the leave or entry clearance granted following such an application to be cancelled) where the applicant’s presence in the UK is not conducive to the public good because of conduct committed after the end of the Transition Period. This is a lower threshold for deportation than under EU law, which applies to conduct committed up to the end of the Transition Period. EU citizens are thus easier to deport for conduct or crimes committed after 31 December 2020.
The second significant change concerns family members of EEA nationals. Where both the national and the family members were continuously resident in the UK before 30 June 2021, or the end of the transition period, the changes will allow for the family member making an application on or after 1 July 2021 to rely on either the qualification of the EEA citizen for EUSS status if they had made a valid application under Appendix EU before 1 July 2021, or that prior residence of the EEA citizen, regardless of whether that EEA citizen has EUSS status or could have qualified for it if they had applied before 1 July 2021. This also applies where the EEA citizen has died (and was resident in the UK as a worker or self-employed person at the time of their death), or where the applicant relies on their documented right of permanent residence or existing indefinite leave to enter or remain.
The purpose of this change is to prevent a situation where the family member of an EEA citizen is prevented from obtaining EUSS status because the EEA themselves has not applied to the EUSS. The current iteration of Appendix EU would have prevented this and it was argued that this breached the Withdrawal Agreement. The Home Office appears to have made these changes to avoid that breach.
Additionally, changes were made to the rules of evidence for family members of EEA citizens applying to the EUSS. Under the new rules, a family member applying to the EUSS can rely on a family permit issued under the old (pre-Brexit) Immigration (European Economic Area) Regulations 2016 as a relevant document evidencing their relationship. Generally, they can rely on the family permit if it was issued on the basis of an application made under the EEA Regulations before 1 July 2021, except where the family member is an extended family member dependent relative. In those cases, the application under those Regulations must have been made by the end of the Transition Period (31 December 2020). Most family members can also rely on those family permits as evidence if the family permit has expired since the end of the Transition Period and before they apply to the EUSS, where they arrived in the UK after the end of that period but before 1 July 2021. Unmarried, durable partners or an extended family member dependent relative applying to the EUSS, however, will not be able to rely on an expired family permit issued under the EEA Regulations.
These changes will make it easier to evidence the family relationship as the Home Office will already have carried out an assessment on the family relationship in order to issue the old family permit. Additionally, there is a change to allow an applicant for an EUSS family permit to rely on alternative evidence of identity and nationality where the applicant is unable to obtain or produce the required document due to circumstances beyond their control or compelling practical or compassionate reasons. This brings the Appendix EU (family permit) approach into line with the way the Appendix EU operates.
Overall the changes should make the EUSS function more smoothly and it is important that family members who have previous residence with an EEA citizen are not penalised solely because that person did not apply to the EUSS (for example because they have left the UK). In terms of late applications, the process should be made as straightforward as possible and so relying on a single application process rather than a two-stage process, is an improvement. This said, the Home Office policy of forcing eligible EUSS applicants into the hostile immigration environment until they are granted status – which could take a long time depending on the complexity of the application – is a harsh penalty for missing a deadline for potential good reason. We know that there are still many people out there who do not know the EUSS applies to them, or who are facing difficulties with the application process; the policy towards these people could and should be more generous.