Date Legislation considered: 12 May 2023
Date Legislation in Force: 12 April 2023
Potential Right(s) Affected: Residencey
What does the legislation do?
The Statement of Changes amend 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 detailed rules for the EUSS are contained in Appendix EU and for the EUSS family permit in Appendix EU (Family Permit). This report also considers changes made to Appendix AR (EU) and other provisions concerned with administrative review of EUSS decisions.
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, and the family members of certain British citizens returning with them from EU, EEA EFTA countries or Switzerland, to obtain UK immigration status (either pre-settled status or settled status) to live in the UK.
The EUSS family permit enables relevant family members to travel to the UK.
The main changes in respect of the Rules are as follows: –
Durable partners
The definition of durable partner in Annex 1 to Appendix EU has been amended.
The Explanatory Memorandum to the Statement of Changes provides that the change is
“to underline the original policy intent under the EUSS that it is only where they had another lawful basis of stay in the UK before the end of the transition period that a durable partner who was not documented as such under the EEA Regulations can rely on that residence”. In the unreported case of Kabir v SSHD EA/13870/2021 which was heard before the changes to the Rules, the Upper Tribunal found that “it is not possible to discern the meaning or application of paragraph (b)(ii)(bb)(aaa) [the provision subsequently amended by the Rules] with any confidence”.
The Rules change clarifies that a person who was not a documented durable partner under the Immigration (European Economic Area) Regulations 2016, SI 2016/1052 (“EEA Regulations 2016”) at the end of the transition period, and who makes an application to the EUSS after the end of the transition period as a durable partner, can only rely on their residence in the UK before the end of the transition period if they had another lawful basis to stay in the UK, e.g. as a student.
Durable partner of a qualifying British citizen
The definition of family member of a qualifying British citizen in Annex 1 to Appendix EU has also been changed. Durable partners of a qualifying British citizen will need to show that their partnership remains durable at the date of application, or that it did so for the relevant period or immediately before the death of the qualifying British citizen.
Derivative and Zambrano rights to reside
The definitions of a person with a derivative right to reside: Chen (the primary carer of a self-sufficient EU citizen child) or Ibrahim & Teixeira (a child in education in the UK of an EU citizen former worker or self-employed person in the UK and the child’s primary carer) and of a person with a Zambrano right to reside (the primary carer of a British citizen) have been changed to add a new exception which permits those citizens who had applied for an EEA family permit by 31 December 2020 and who were subsequently granted an EUSS family permit on an equivalent basis, to apply for status under the EUSS during the currency of their leave to enter following their arrival in the UK. This is a technical change which was preceded by a concession in the relevant guidance to this effect.
Cancellation
The changes provide that where the relevant threshold is met in respect of a person subject to a travel ban imposed by the UK or the United Nations Security Council, their EUSS leave is to be cancelled. This will be subject to a right of appeal.
Period of validity
To provide for an EUSS family permit issued from 12 April 2023 to be valid in all cases for a period of six months from the date of decision.
Sponsor
To prevent a relevant EEA or Swiss citizen granted pre-settled or settled status under the EUSS in error from sponsoring an EUSS family permit.
Administrative Review
The changes provide that: –
- where a person is refused status on both eligibility and suitability grounds, there is no right to an administrative review. Such a person will still have a right of appeal against the refusal decision.
- an EUSS administrative review will be withdrawn where another application is made under the EUSS, for an EUSS family permit, as an S2 healthcare visitor or as a Service Provider from Switzerland.
Comments
Whilst the IMA notes the changes that have been made to the Rules to clarify the position for durable partners who did not hold a relevant document under the EEA Regulations 2016 but who had another lawful basis to reside in the UK before the end of the transition period, the IMA is unclear what action the Home Office is taking to resolve any issues that may have arisen as a result of confusion regarding interpretation of the relevant provisions.
The Home Office has confirmed that the changes made to (b)(ii)(bb) of the definition of ‘durable partner’ in Annex 1 to Appendix EU from 12 April 2023 do not reflect any change in policy. Also, the Home Office has confirmed to that the IMA that it has taken steps to ensure that caseworkers and presenting officers representing the Home Office are clear on the application of the relevant provision as part of regular communication in relation to Immigration Rules changes.
The Home Office was asked by the IMA to clarify how it is to be determined that EUSS status has been granted in error to a sponsor of an EUSS family permit. The Home Office has confirmed to the IMA that “where an EUSS family permit application gives rise to concerns that an EEA citizen sponsor may have been granted EUSS status in error, the relevant entry clearance caseworking team will undertake checks and contact the EUSS family permit applicant to ask for further information or evidence in relation to their sponsor. For example, evidence as to the sponsor’s residence in the UK before the end of the transition period.”
Finally, the Home Office has been asked to clarify how the change to paragraph 34X in Part 1 of the Rules concerning withdrawal of an administrative review where another EUSS application is made is compatible with the Citizens’ Rights Agreements. The IMA is continuing to discuss this with officials.
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.