Date Legislation considered: 8 November 2023
Date Legislation in Force: 5 October 2023 – for the purposes of changes considered in this report
Relevant Withdrawal Agreement/EEA EFTA Separation Agreement Right(s): Residency
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 to the Rules that are relevant to the EU Settlement Scheme (EUSS), the EUSS family permit and the S2 Healthcare Visitor route.
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 S2 Healthcare Visitor route provides for a route of entry to the UK for people who, by the end of the transition period, had requested authorisation from their home EEA state or Switzerland to receive a course of planned healthcare treatment provided by the NHS under the S2 route, pursuant to Regulation (EC) No 883/2004. They can be accompanied by persons providing care or support during the planned treatment period.
The main change to the Rules is the removal of the right of administrative review for all decision types where it currently applies for the EUSS, the EUSS family permit and the S2 Healthcare Visitor route. The changes apply to all decisions made on or after 5 October 2023.
The Explanatory Memorandum states that “since 1 November 2018, applicants to the EUSS who are refused on eligibility grounds, or granted pre-settled rather than settled status, have had an additional right of administrative review. There is also currently a right of administrative review against a decision to cancel EUSS status on certain grounds. Dual avenues of redress by way of both appeal and administrative review are not required under the Citizens’ Rights Agreements and are not reflected in other immigration routes.”
An administrative review is an internal mechanism whereby the Home Office reviews a previous decision.
Article 18(1)(r) Withdrawal Agreement (“WA”) and Article 17(1)(r) EEA EFTA Separation Agreement (“SA”) require the UK to provide for judicial redress against any decision refusing to grant residence status. This is provided for through the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 which provide a right of appeal to the First Tier Tribunal (Immigration and Asylum) in respect of decisions to refuse, curtail or revoke EUSS status.
The Explanatory Memorandum states that some minor technical amendments are also made to the Immigration Rules for the EUSS in Appendix EU to clarify the existing policy position that, where a dependent parent or child has already been granted limited leave under Appendix EU, they will not need to evidence dependency for any further applications under Appendix EU. Changes are also made to the definition of ‘required date’ in Annex 1 of Appendix EU to clarify that the required date specified in sub-paragraphs (a)(viii) and (ix) of that definition does not apply to applicants relying on being either a person with a Zambrano right to reside or a family member of a qualifying British citizen.
Whilst the IMA does not raise any issues of concern in respect of the compatibility of the legislative changes with the Citizens’ Rights Agreements, it notes that the removal of the ability to request an administrative review will inevitably mean that more citizens will be required to engage with the appeal process, in the event that they wish to challenge a decision to refuse or remove their leave.
Article 21 WA/Article 20 SA (relying on Article 30 Directive 2004/38) require that applicants who may wish to challenge such a decision are provided with clear information as to the factual and legal grounds on which the decision has been taken, in order that they can properly consider any next steps.
Any citizen experiencing difficulties in exercising their rights is 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.