Date Legislation considered: 09 August 2023
Date Legislation in Force: 09 August 2023
Potential Right(s) Affected: Residencey
What does the legislation do?
The Statement of Changes amends the Immigration Rules (“the Rules”) which are used to regulate people’s entry to, and stay in, the United Kingdom.
This report only considers those changes that relate to the EU Settlement Scheme (EUSS) and the EUSS family permit.
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 family members, to obtain UK immigration status (either pre-settled status or settled status) to live in the UK.
The EUSS family permit enables relevant joining family members to travel to the UK.
The main changes in respect of the Rules are as follows: –
Extension of limited leave to enter or remain (pre-settled status)
In December 2022, following the IMA’s successful judicial review claim in R (IMA) v Secretary of State for the Home Department  EHWC 3274 (Admin), the High Court held that the EUSS breached the Citizens’ Rights Agreements. The Court found that the right to reside under the Agreements of a person granted pre-settled status does not expire by virtue of failing to make a second application to the EUSS; and that the right of permanent residence under the Agreements is acquired by a person granted pre-settled status automatically on five years’ continuous qualifying residence.
Paragraph EU4 of Appendix EU has been amended to provide that the Secretary of State “may extend [pre-settled status], regardless of whether the person has made a valid application under this Appendix for such an extension’.
The Explanatory Memorandum states that the change reflects that the Secretary of State has the power to extend pre-settled status under sections 3(3)(a) and 4(1) of the Immigration Act 1971.
The Home Office has announced in a separate press release and media fact sheet, that from September 2023, all pre-settled status holders will have their pre-settled status extended automatically, for a further period of 2 years, before it expires if they have not already obtained settled status. The Home Office states that this will ensure that nobody loses their immigration status if they do not apply to switch from pre-settled to settled status. The announcement also confirms that, at some point in 2024, the Home Office intends to take steps to automatically convert as many citizens as possible with pre-settled status to settled status once they have met settled status conditions.
Validity Requirements – Late Applications and Illegal Entrants
Amendments are made to Appendix EU to make the requirement – under the Citizens’ Rights Agreements – to show reasonable grounds for a late application to the EUSS, a validity rather than an eligibility requirement. The Explanatory Memorandum states that “consistent with the Agreements, this will enable the Secretary of State to consider whether there are reasonable grounds for a late application as a preliminary issue, before going on to consider whether a valid application meets the relevant eligibility and suitability requirements.” The change will apply to applications made on or after 9 August 2023.
Similarly, in-country applications made on or after 9 August 2023 as a ‘joining family member’ made by an ‘illegal entrant’ (as defined in section 33(1) of the Immigration Act 1971) will be rejected as invalid. Broadly speaking, joining family members are those existing close family members of EU and EEA EFTA nationals who were living overseas as of 31 December 2020.
Closure of Zambrano and Surinder Singh routes
At 11.59 pm on 8 August 2023, the EUSS will close to new applications from Surinder Singh family members (those accompanying a British citizen family member returning to the UK after exercising free movement rights) and to Zambrano applicants (the primary carer of a British citizen living in the UK).
The EUSS family permit will also close then to new overseas applications for Surinder Singh family members. The Explanatory Memorandum states that those granted an EUSS family permit as such a family member (including on appeal), following an application made by 8 August 2023, will still be able to come to the UK. They will be able to apply here to the EUSS where they do so before the expiry of the leave to enter granted by virtue of having arrived in the UK with that entry clearance (or later where they have reasonable grounds for their delay in making their application).
Both of these routes are outside the scope of the Citizens’ Rights Agreements. The Explanatory Memorandum which accompanies the Statement provides that the “UK made generous transitional provisions enabling such persons to access the EUSS for more than four years. It is now appropriate, as a matter of fairness to other British citizens wishing to sponsor foreign national family members to settle in the UK, that any new applications should have to meet the Immigration Rules applicable to others”.
Durable Partners – Dependent Relatives
The definition of ‘dependent relative’ in Appendix EU has been amended to allow a child of a durable partner to be granted settled status where they have turned 18 since their previous grant of pre-settled status.
The IMA is continuing to engage with the Home Office in respect of various aspects of the changes and intends to issue a further report(s) as those discussions continue.
In the interim, the IMA makes the following comments:-
- The IMA issued a statement on the Home Office’s plans to implement the judicial review judgment on 17 July 2023. The IMA notes that the changes to the Rules allow for pre-settled status to be extended without further application, albeit that the Secretary of State already has power to do so under the Immigration Act 1971. This change therefore does not, of itself, implement the judgment in R(IMA). It is necessary to consider how the Secretary of State will use this power to extend pre-settled status in order to assess whether the judgment is implemented to ensure that holders of pre-settled status do not lose their rights for failure to make a second application. Details of the steps the Secretary of State intends to take are found in the documents and statements issued by the Home Office alongside the changes. These refer to a 2-year extension and while this is welcomed so that no holder of pre-settled status loses rights in the short term, by itself it maintains the current time-limited nature of pre-settled status which the judgment in R(IMA) found to be incompatible with the Citizens’ Rights Agreements. The IMA will continue to engage with the Home Office to understand the detail of its plans in order to assess whether the judgment is fully implemented on this point.
The judgment also confirmed the automatic acquisition of the right of permanent residence by pre-settled status holders once the relevant criteria are met, and it is clear that some citizens who have pre-settled status will, in fact, be entitled to the right of permanent residence. The Home Office has outlined the steps it intends to take to automatically convert as many eligible pre-settled status holders as possible to settled status once they are eligible for it, without them needing to make a further application. Pending automatic conversion, such citizens’ domestic immigration status will not reflect their rights under the Agreements. The changes to the Rules do not address this part of the judgment. The IMA is also continuing to engage with the Home Office to understand its detailed plans in respect of this part of the judgment.
- The IMA acknowledges that the Agreements allow for the Home Office to determine whether someone has reasonable grounds for making their application to the EUSS out of time, before accepting it as valid. However, one consequence is that a decision not to accept the grounds as reasonable is only open to challenge by way of judicial review. There is no appeal mechanism. The IMA has raised this with the Home Office and is continuing to engage with them on that issue and on its similar concerns in respect of the changes which have been made in respect of in-country applications from joining family members who are illegal entrants.
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.