Appendix EU and Appendix EU (Family Permit), which contain the rules for the EU Settlement Scheme, have received their latest revamp in the recent statement of changes (HC 813) to the Immigration Rules. The explanatory memo says that the changes “mainly reflect the end of the transition period” between the EU and the UK at 11pm on 31 December 2020.

Although the changes are necessary for the ending of the transition period, they also cater for the grace period which lasts from 1 January 2021 to 30 June 2021, and beyond. So some of the changes relate to Settlement Scheme applications made after 1 July 2021, which as we shall see is possible in some circumstances.

All the changes, with the exception of those relating to the general grounds for refusal, come into effect at 11pm on 31 December 2020. This piece covers the changes relevant to EU, EEA and Swiss citizens (I’ll refer to EEA citizens for short) and does not cover Surinder Singh cases as these have different qualifying conditions.

Obligatory moan about the drafting

For those currently bathing in the success of the Immigration Rules simplification project, the explanatory notes contain a word of warning:

Not all changes to the rules concern routes that will be simplified. For example, the new Appendix EU and Appendix EU (Family Permit) are amended to reflect policy changes which mainly relate to the end of the transition period.

I assume this is a tacit way of saying that adding yet more definitions into these appendices means that they remain something of a navigational challenge.

Hate to say it but Appendix EU and Appendix EU (Family Permit) in HC813 are just new levels of gobbledegook I’m afraid. The amount of cross referring you have to do is unreal. You need about 5 versions open at the same time.

— Jonathan Kingham (@jonkingh) November 4, 2020

Application deadline

By the time the grace period ends on 30 June 2021, all eligible applicants – with some exceptions covered below – are supposed to have applied to the EU Settlement Scheme. Failure to make an application by the deadline will result in the person becoming unlawfully resident in the UK (some will already be unlawfully resident). There is already significant concern about how many people will miss the deadline because they are unaware of the need to apply, or for another valid reason that has prevented them from applying.

General rule on late applications

The Brexit Withdrawal Agreement requires the UK to accept late applications where there are “reasonable grounds” for the deadline being missed. The Home Office was therefore obliged to insert a clause into Appendix EU to facilitate this.

You can see this in the new “required date” definition in Annex 1. This tells people the date they need to apply by – not always 30 June, as discussed below – and contains a standard clause for the Home Office to accept an application after the stipulated deadline. The standard late application clause wording says:

where the Secretary of State is satisfied that there are reasonable grounds for the person’s failure to meet the deadline [applications will still be accepted] before the end of such further period of time for the person to make an application under this Appendix as the Secretary of State considers reasonable and notifies to the person in writing.

So this is a two-part test:

1. are there reasonable grounds for missing the deadline?
2. has the application been made within a reasonable period from the deadline date?

Understanding how these tests will work in real life would be assisted by having a published policy. The Home Office says that there will be one “in due course” and has given a few examples of what will be in it (point 11 here) But in the meantime we will have to remain cautious about how late application requests will pan out.

The deadline isn’t 30 June for everyone

As I’ve said, the usual deadline is 30 June 2021, so most people who miss that deadline will need to rely on the exception outlined in the last section.  However, there are other deadlines for some categories. These are:

• Pre-settled status holders have until the end of their grant of limited leave to remain to apply for settled status (though they can apply as soon as they have five years’ continuous UK residence).
• Family members coming to join their sponsor in the UK holding an Appendix EU family permit have three months to apply if arriving after 1 April 2021.
• For a qualifying family member who holds leave to remain under another part of the Rules or outside of them, they must apply before end of that leave – even if this is after 30 June 2021.
• People exempt from immigration control have 90 days from the date they cease to be exempt to make an application (effectively deemed leave).
• Surinder Singh families where the relationship existed before 31 January 2020 (unless a child) have until 29 March 2022 to move back to the UK and apply.

The “required date” definition confirms that paragraph 39E of the Rules, which normally applies to out-of-time immigration applications, does not apply to Appendix EU. If paragraph 39E did apply, only 14 days would be allowed for late applications.

Sponsoring family members

The statement of changes also gives effect to some of the rights that the Withdrawal Agreement confers on family members of EEA citizens.

Some of these family reunion rights are already up and running under Appendix EU (Family Permit). But up until now it has only needed to cater for non-EEA family members who require permission to join their sponsoring family member in the UK. During the transition period there has been no need to have family reunion rights for EEA family members — they could simply travel to the UK under free movement law and apply to the Settlement Scheme in their own right.

From 1 January 2021, EEA citizens who have no previous UK residence to rely on – or who have had a previous UK residence that has been broken by an extended absence – will need to be sponsored by their EEA family member in the UK. It will be possible to sponsor someone under the Settlement Scheme rules so long as the family relationship existed by the time the transition period ends, or if they are a child born or adopted at any point in the future. 

The types of family relationships that can be sponsored are straightforward enough [although not so straightforward that we’re going to get into them here, see our Settled Status Handbook for more on this — Ed.]. But the situation gets a touch confusing when trying to figure out which application route needs to be followed: there are options available under by Appendix EU and Appendix EU (Family Permit). Some family members have to apply from overseas, whereas others can apply in the UK.

To figure out which application route is available for the family member in question you need to look to the newly inserted paragraphs EU2A, EU3A, EU11A and EU14A. There are also new concepts in Annex 1: “relevant sponsor” , “joining family member of a relevant sponsor” and a second definition of “relevant EEA citizen”. This last concept now has two definitions depending on whether the application is made in the grace period or from 1 July 2021.

The purpose of having two definitions for an EEA citizen is so that, during the grace period, the sponsoring EEA citizen does not have to have their own settled or pre-settled already in place to sponsor a family member, as long as they can show that they would be granted it were they to apply. It’s still easier for the sponsoring EEA citizen to have settled or pre-settled status before the family member applies, but it is not obligatory. From 1 July 2021, this will not be the case: only those EEA citizens with settled or pre-settled status will be able to sponsor their family members under the Settlement Scheme. 

There are, roughly speaking, three possible routes for family members.

1. Existing residents

Family members who were already resident in the UK before the end of the transition period can continue to apply under Appendix EU in the way that they would do today. They will continue to meet the definition of a “family member of a relevant EEA citizen” and, importantly, do not need immigration status to apply. Their applications must be made by 30 June 2021.

2. EEA citizens applying after the transition period

Family members without UK residence before the end of the transition period, or whose continuous residence has been broken, fall under a new definition: “joining family member of a relevant sponsor”. This applies to both EEA citizens and third country nationals. Family members who meet this definition can apply for pre-settled status or settled status outside of the UK using the overseas application process. Paragraphs EU11A and EU14A say that applications made in the UK are only an option if the applicant is not in the UK on a visit visa. This is obviously designed to close off the temptation for EEA family members to enter through passport eGates and then apply.

This means in most cases, the “joining family member of a relevant sponsor” will be applying outside the UK. At this point EEA citizens have an advantage: in most cases, they will be able to use the “required application process” — the settled status app, in other words — to apply from overseas. 

3. Non-EEA citizens applying after the transition period

Family members who are not EEA citizens can normally only use the app if they already have a biometric residence card issued under the EEA Regulations. If not, they will first need to apply for a family permit and then apply for pre-settled status under Appendix EU within three months of arrival (if arriving after 1 April 2021).

Dependency no longer assumed

There is a significant change for dependent parents. From 1 July 2021, such people must provide evidence of their dependency on their sponsor. The explanatory statement confirms:

To provide that, consistent with the Agreements, in an application to the EUSS made from 1 July 2021, the dependency of a parent or grandparent on the resident EEA or Swiss citizen will not be assumed but will need to be evidenced.

Currently, any family member seeking to join as a dependent parent does not need to provide any evidence of their dependency on the sponsor. The applicant still has to declare that they are dependent, but unusually for the Home Office they are not asked for proof.   

There is some indication of the level of dependency will be required set out in the definition of “dependent parent”:

Having regard to their financial and social conditions, or health, the applicant cannot, or (as the case may be) for the relevant period could not, meet their essential living needs (in whole or in part) without the financial or other material support [from the sponsor].

In line with EU case law, the reason that the parent has become dependent should not be investigated. All the same, this significant change could well mean a surge of applications from parents during the grace period to take advantage of the lower / non-existent evidential burden relating to dependency.

General grounds for refusal

Currently, it takes a serious amount of dedication to establish which of the general grounds for refusal in part 9 of the Immigration Rules applies to Settlement Scheme applications. So it is welcome that the general grounds for refusal that are relevant have been brought both Appendix EU and Appendix EU (Family Permit) in a new Annex 3 to each one.

The powers in Annex 3 relate to the cancellation, curtailment and revocation of leave to remain or enter. Which power is used will depend on the circumstances. To summarise, the situations where the Home Office may take action are where:

• The decision is justified on grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations 2016.
• The decision is justified on the ground that it is conducive to the public good for conduct after 31 December 2020.
• The decision is justified where the applicant – with or without their knowledge – provided false or misleading information, representations or documents were submitted and the reliance on this was material to the outcome of the application.
• The person ceases to meet the requirements of Appendix EU.
• There has been a change in circumstances that is, or would have been, relevant to that person’s eligibility for that entry clearance.
• The person has entered, attempted to enter or assisted another person to enter or to attempt to enter, a marriage, civil partnership or durable partnership of convenience after 31 December 2020. 
• Indefinite leave to enter or remain can be revoked where the person is liable to deportation, but cannot be deported for legal reasons.
• Indefinite leave to enter or remain was obtained by deception.

All of these grounds are discretionary and are distinct from the suitability grounds of refusal. These changes come into effect on 1 December 2020.

“Smooth, transparent and simple”?

Article 18(1)(e) of the Withdrawal Agreement says:

the host State shall ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided.

As we approach the end of the transition period, the EU Settlement Scheme is getting more complex rather than less. Trying to negotiate the Appendices is difficult and overall we seem to be failing the transparent and simple test.

The family reunion rights in the Withdrawal Agreements are also guaranteed and are supposed to be straightforward. Instead we have three possible application routes, depending on the nationality of the family members and whether they have been resident in the UK before. One of these routes involves the family member having to make three separate applications to confirm their right to reside permanently (family permit, then pre-settled status, then settled status). People are going to makes mistakes choosing the right process and refusals will happen; they might not be permanent refusals, but it will still be highly distressing for the families trying to exercise their right to reunite with each other.

In addition, despite the consequences of missing the deadline being so serious, we still do not know the detailed policy on late applications. The reasonable excuse examples given by the Home Office so far, whilst very important, may not cover the main reasons why eligible citizens will fail to apply: that they do not know that the Settlement Scheme exists or erroneously believe they are not required to apply.