Date Legislation considered: 17 November 2022
Date Legislation in Force: 09 November 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 (“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.
Changes have been introduced to the EU Settlement Scheme 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 main changes in respect of the Immigration Rules for the EUSS in Appendix EU and for the EUSS family permit in Appendix EU (Family Permit) are as follows:-
Clarification on the EUSS application deadline for certain joining family members
Changes have been made to the Rules to provide that where a joining family member arrives in the UK with other limited leave (e.g. a work or study visa) or as a person exempt from immigration control, the deadline for them to apply to the EUSS is linked to the end of that status, rather than within three months of their arrival in the UK.
Changes to the definitions of ‘qualifying British citizen’ and their family members
The definitions of ‘qualifying British citizen’ and their family members have been changed to bring into the Rules the current concessions contained in guidance in relation to family members of a qualifying British citizen returning to the UK from the EEA.
The changes provide:
- for a relevant child to have been born or adopted after the end of the transition period and before the family’s return to the UK;
- for the qualifying British citizen to have returned to the UK ahead of the family member; and
- for the Sovereign Base Areas on Cyprus to be treated as part of the EEA where an accompanying family member of a member of HM Forces, who was posted there before the end of the transition period, otherwise meets the requirements of the route.
Clarification on commencement of qualifying period for certain family members
The definition of ‘specified date’ has been amended to clarify that ‘relevant EEA family permit cases’[1] and – where the Secretary of State is satisfied that there are reasonable grounds for the person’s failure to meet the deadline for returning to the UK – family members of a qualifying British citizen (i.e. Surinder Singh cases) will start their continuous qualifying period of residence in the UK under the EUSS at 23.59 GMT on the date of their arrival in the UK.
New suitability grounds for EUSS family permits
New provision for an EUSS family permit to be refused (or revoked) is added where the person is an excluded person by reference to section 8B(4) of the Immigration Act 1971 (i.e. subject to a travel ban due to a resolution of the United Nations Security Council or an instrument made by the Council of the EU, or under regulations having the same effect under section 1 of the Sanctions and Anti-Money Laundering Act 2018). Where the person is an excluded person due to conduct committed before 11pm on 31 December 2020, the entry clearance officer making the decision must also be satisfied that the refusal (or revocation) is justified on grounds of public policy, public security or public health.
Article 20 of the EU Withdrawal Agreement and Article 19 of the EEA EFTA Separation Agreement require the conduct of citizens and their family members before the end of the transition period to be considered in accordance with Chapter VI of Directive 2004/38/EC.
Article 20 of the EU Withdrawal Agreement and Article 19 of the EEA EFTA Separation Agreement require the conduct of citizens and their family members before the end of the transition period to be considered in accordance with Chapter VI of Directive 2004/38/EC.
Zambrano, Chen and Ibrahim & Teixeira Derivative Rights
- Changes have been made so that there is no longer a need to cross-reference the requirements in Appendix EU with the Immigration (European Economic Area) Regulations 2016 to understand the qualifying conditions when making an application based on Zambrano, Chen or Ibrahim & Teixeira derivative rights. The qualifying criteria are now to be found within Annex 1 to Appendix EU.
- The Court of Appeal decisions in Akinsanya and Velaj have been reflected in the relevant definitions.
- Previously under Appendix EU and in accordance with EU case-law, in order to be eligible for Ibrahim & Teixeira derivative rights, both the child and their relevant parent had to reside, or have resided, in the UK at the same time, and during such a period of residence the relevant parent had to have been a worker. The changes within the Rules provide that the relevant parent may also be, or have been, a self-employed person in UK at the relevant time.
[1] ‘Relevant EEA family permit case’ is defined in Annex 1 to Appendix EU.
Comments
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.