Date Legislation considered: 23 May 2022
Date Legislation in Force: 06 April 2022 (for changes to Appendix EU and Appendix EU (Family Permit))
Potential Right(s) Affected: Residency
What does the legislation do?
The Statement of Changes amend the Immigration Rules which are used to regulate people’s entry to, and stay in, the United Kingdom.
This report only considers those key changes that fall within the remit of the IMA.
Changes are being introduced to the EU Settlement Scheme (EUSS) and EUSS Family Permit. The detailed rules for the EUSS are contained in Appendix EU and the rules for the EUSS family permit in Appendix EU (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, 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 changes provide that:
- where a further valid application is made to the EUSS before a previous valid application has been decided, the further application will be treated as an application to vary the previous application and only the further application will be considered.
- where 2 applications are made, and where one is under the EUSS and the other under another part of or outside the Immigration Rules and both are valid but not yet decided, both applications must be considered. Where they both fall to be granted, the Secretary of State will ask the applicant to choose which application they want to be decided and which they wish to be withdrawn.
EEA Family Permit Concession
In order to join their sponsor in the UK, and apply under the EUSS, some family members of an EU, EEA EFTA or Swiss citizen with EUSS status require a family permit.
EEA family permits operated alongside EUSS family permits until 30 June 2021 and provided a separate entry clearance route for those who qualified for it. EEA family permits were available to a much wider category of family member than EUSS family permits and included e.g. dependent siblings and cousins.
Article 10(3) of the EU Withdrawal Agreement and Article 9(3) of the EEA EFTA Separation Agreement require the Home Office to process EEA family permit applications from dependent relative extended family members as long as they applied by 31 December 2020.
Notwithstanding this, the Home Office decided that EEA family permits were no longer valid for travel to the UK after 30 June 2021. The IMA received complaints from citizens who had applied before the deadline of 31 December 2020 and who were having difficulty obtaining a family permit.
A temporary concession was created through guidance which instructed caseworkers to issue an EUSS family permit to dependent relative extended family members who applied for an EEA family permit by 31 December 2020 in various circumstances. The concession was temporary pending changes to the Immigration Rules.
The changes made bring within the rules the concession arrangements as follows:-
- an EUSS family permit is to be issued in place of an EEA family permit (and can be relied upon in a subsequent EUSS application) where an EEA family permit would have been issued (including on appeal) to a dependent relative extended family member, or a person with a derivative right to reside, had the route not closed after 30 June 2021.
- where an EUSS family permit is issued in place of an EEA family permit under these arrangements, the person is able to start their qualifying period of continuous residence in the UK after 31 December 2020.
- an appropriate letter is to be issued by the Secretary of State in place of an EEA residence card (and can be relied upon in a subsequent EUSS application) where an EEA residence card would have been issued (including on appeal) to an extended family member, had the route not closed after 30 June 2021.
Lounes dual nationals
The changes provide that Lounes* dual nationals (i.e. dual British and EU or EEA EFTA citizens who exercised free movement rights in the UK prior to obtaining British citizenship and who retained their EU or EEA EFTA nationality after obtaining British citizenship) are able to sponsor family members under the EUSS and EUSS family permit, notwithstanding the fact that they acquired British citizenship without having met free movement requirements to have held comprehensive sickness insurance in the UK as a student or self-sufficient person.
The IMA raises no issues of concern at this stage, however 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.
*Named after the case of C165/15 Toufik Lounes v Secretary of State for the Home Department