Date Legislation considered: 12 October 2024

Date Legislation in force: 8 October 2024 in respect of the changed to Appendix EU

Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residence

What does the legislation do?

The Immigration Rules (“the Rules”) are statements by the Secretary of State as to how she will  exercise her power to regulate immigration. 

The Statement of Changes make several changes to the Immigration Rules, not all of which are  relevant to the EU Settlement Scheme (“EUSS”).  

The detailed rules for the EUSS are contained in Appendix EU 

The EUSS enables EU, EEA EFTA and Swiss citizens living in the UK by the end of the transition  period on 31 December 2020, and their relevant family members to obtain UK immigration status  (either pre-settled status or settled status) to live in the UK.

The main changes relevant to the EUSS and the work of the IMA are as follows:

Appendix ETA National List

The Statement of Changes introduced Appendix ETA National List which extends the requirement  to obtain an Electronic Travel Authorisation (‘ETA’) to eligible EU and EEA EFTA citizens.    

The ETA Scheme was first announced in a Statement of Changes in March 2023. An ETA is a digital  permission to travel to the UK. Home Office Guidance can be found here.  

EU and EEA EFTA citizens and their family members, with a visa or with status under the EUSS, are not required to obtain an ETA to travel to the UK.  

Automatic conversion from pre-settled status to settled status

Paragraph EU4 of Appendix EU has been changed to make provision enabling the Secretary of State  to automatically convert a grant of pre-settled status to settled status without a valid application having been made, where the Secretary of State is satisfied that the requirements for settled status  are otherwise met. These changes are part of a package of measures introduced by the Home  Office following the High Court’s decision in R (Independent Monitoring Authority for the Citizens’ Rights Agreement v Secretary of State for the Home Department. 

Definition of ‘required date’

The definition of ‘required date’ in Annex 1 to Appendix EU has been changed to require a joining  family member to apply to the EUSS within three months of their first (not latest) arrival in the UK  since the end of the transition period, or later where there are reasonable grounds for their delay. 

Curtailment of pre-settled status  

Annex 3 to Appendix EU has been changed to enable the Secretary of State to curtail a grant of  pre-settled status (subject to a right of appeal) for helping another person after the end of the  transition period fraudulently to obtain, or to attempt to obtain, entry clearance to or leave to enter  or remain in, the UK. 

Other changes to the Rules relevant to the EUSS include:  

• Provision applying the procedural provisions in Annex 2 to Appendix EU when considering  whether an individual granted pre-settled status continues to meet the eligibility  requirements;  
• Provision enabling a child who was resident in the UK before the end of the transition period,  and who has turned 21 since the end of the transition period, not to have to meet a  requirement of dependency on their parents in their application for EUSS status; and
• Simplification of the requirements for family members of EU and EEA EFTA citizens with a  retained right of residence when applying for status under the EUSS after the death or  divorce of the EU or EEA EFTA citizen.

The changes made by the Statement of Changes are summarised in the Explanatory Memorandum presented to the UK Parliament alongside them.

Comments

From 2 April 2025, anyone visiting the UK who does not already have UK immigration status or a  visa will be required to obtain an ETA before travelling to the UK.  

The IMA is discussing with the Home Office the impact this may have on citizens with a pending  valid EUSS application, and an update will be provided once this engagement is concluded. 

The IMA is also continuing to discuss the change to the ‘required date’ for joining family members  to apply for status under the EUSS. Whilst the IMA acknowledges that the guidance on ‘reasonable grounds’ for making a late application may serve to mitigate the effect of the change in some  circumstances, it is concerned that the change is incompatible with Article 18 WA/Article 17 SA.  The IMA’s view is that the time limit for joining family members to make an application under the  Agreements is only engaged when they arrive in the UK and seek to reside by virtue of their  relationship as an immediate family member of the sponsor in exercise of their rights under the  Agreements. The Home Office does not share this view.  

Finally, the IMA is concerned that the change to the curtailment provisions which allows the Home  Office to curtail status in circumstances where an individual has not engaged in fraud in relation to  their own application to the EUSS – but has done so in respect of an application made by another  person – is not compatible with Article 20(3) WA/Article 19(3) SA (which refer to A35 CRD). The  IMA’s view is that in cases where the PSS/SS holder is a ‘facilitator’ or ‘third party’ and does not

gain any advantage in terms of his own residence, A35 will not apply. The Home Office does not  agree, and IMA officials are continuing to discuss the issue with the Home Office. 

Any citizen experiencing difficulties in exercising their rights is encouraged to report a complaint  through the IMA Portal.  

The IMA also encourages any EUSS applicant, who has experienced any difficulties travelling to the  UK, to tell us about their experiences via our dedicated inbox at travel@ima-citizensrights.org.uk 

Further information about the IMA and guidance on how to report complaints can also be found on  the Website.

Date Legislation considered: 2 August 2024

Date Legislation in force: 23 July 2024 (subject to regulation 1(3))

Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residence

What does the legislation do?

The Explanatory Memorandum to the Illegal Migration Act 2023 (Amendment) Regulations 2024 (“the Regulations”) states that the Regulations amend “the date of application of the Duty to Remove in section 2 of the Illegal Migration Act 2023. As a result, instead of the Duty to Remove having retrospective effect, meaning that it applies to any person who arrived on or after the day on which the Act received Royal Assent (20 July 2023), the date of application now refers to the day on which section 2 will come into force.”

Whilst section 2 of the Illegal Migration Act 2023 (“the Act”) was never brought into force, it prevented the processing of some asylum claims made on or after 20 July 2023.

The Explanatory Memorandum further states that the Regulations also make “consequential amendments to other provisions of the Act to link them to the date from which the Duty to Remove applies.”

One of those consequential amendments is to remove the ban on granting lawful immigration status or citizenship to persons who arrived on or after 7 March 2023 and who meet the conditions of the Duty to Remove in section 2 (see Regulation 3).

Comments

Whilst the IMA raises no issues of concern with the Regulations, it considers that there may be some EU and EEA EFTA citizens who were permitted entry into the UK  on or after 7 March 2023 and who were given immigration status under Appendix EU before 23 July 2024 (when the Regulations came into force) who nevertheless met the conditions of the Duty to Remove in section 2 of the Act.  In such circumstances, the Act would have operated to prohibit the Home Office from granting such status. This could cause doubts about the validity of the immigration status granted to this cohort. For those citizens with rights under the Withdrawal Agreements, they will be able to rely on their rights which are directly effective (i.e. they do not need domestic legislation to be enforced) notwithstanding any such prohibition. Home Office officials have confirmed that no EU or EEA EFTA citizens were refused status because of the prohibition.

Whilst the IMA acknowledges that the prohibition has been removed, it is concerned where the directly effective nature of the Withdrawal Agreement is relied upon to override conflicting domestic laws. Officials at the Home Office have however provided assurance to the IMA that this issue will be resolved at the earliest legislative opportunity. The IMA will monitor this legislation in accordance with its legislation monitoring work.

UPDATE: On 30 January 2025, the Border Security, Asylum, and Immigration Bill (“the Bill”) was introduced to the House of Commons. Clause 38(2) provides that section 8AA of the Immigration Act 1971 as inserted by section 30(3) of the Act is to be treated as never having been in force. The effect of this is that any leave which was granted when the Home Office did not have the power to do so will be valid. If this provision becomes law, the IMA raises no issues of concern. The IMA will be reporting separately on any other relevant provisions with the Bill.

Any citizen experiencing difficulties in exercising their rights are encouraged to report a complaint through the IMA Portal.

Further information about the IMA and guidance on how to report complaints can also be found on the website.