The UK’s agreements on the post-Brexit rights of EU, EFTA and Swiss residents allow beneficiaries to sponsor their non-European family members to live with them in the UK. There are broadly two types of eligible family members:

• direct family members, such as spouses, civil partners, children and dependent parents, who form the bulk of family reunion cases
• extended family members, a smaller group made up of (1) unmarried partners and (2) other more distant relatives like siblings and cousins who are dependent on their sponsor

Within extended family members, the rules for unmarried partners are different, so this article only looks at the situation for the second group, dependent relatives.

Family permits for dependent relatives

Dependent relatives need a type of visa called a family permit to join their sponsor in the UK. Before Brexit, these were labelled EEA family permits. Post-Brexit, they are called EUSS family permits.

Article 10(3) of the UK/EU Withdrawal Agreement requires the Home Office to process EEA family permit applications from dependent relatives as long as they applied by 31 December 2020. But the department imposed a second deadline: 1 July 2021. From that date, even though the Home Office continued to process EEA family permit applications, it stopped issuing the actual permits to successful applicants. It also informed applicants that EEA family permits already issued but not yet used for travel to the UK were now invalid.

Where someone met the criteria for an EEA family permit but could not be issued one because the decision was made after 30 June 2021, the Home Office approach was to consider whether they met the criteria for an EUSS family permit instead. This was an entirely pointless exercise because dependent relatives have never qualified for EUSS family permits. The net result was that whilst the Home Office was meeting the Withdrawal Agreement obligation to consider applications from dependent relatives, anyone approved was robbed of their right to join their sponsor in the UK.

As you can imagine, civil society, lawyers, the European Commission and the Independent Monitoring Authority were of the view this approach ever so slightly breached the Withdrawal Agreement. The Home Office agreed that something needed to be done to stop dependent relatives from falling through the cracks. It has now amended its guidance which begins the process of remedying the situation.

Concession on issuing EUSS family permits

The guidance creates a temporary concession, pending a change to the relevant Immigration Rules. The concession instructs caseworkers to issue EUSS family permits to dependent relatives who applied for EEA family permits by 31 December 2020 in three situations:

• Those who meet the criteria to be issued an EEA family permit but could not receive one as the decision on their application was made after 30 June 2021. This should include not only pending applications that receive a positive outcome, but also those who successfully appeal previous refusals.
• Those issued EEA family permits on or after 1 June 2021 where the applicant “has contacted the Home Office to advise that they were not able to travel to the UK by 30 June 2021”. I hope this is forward-looking not retrospective.
• Those issued EEA family permits before 1 June 2021 where “the applicant has contacted the Home Office to advise that they were unable to travel to the UK by 30 June 2021 and there were compelling practical or compassionate reasons”. These include reasons related to Covid-19.

Those in the third category are at most risk of not being able to enter the UK, given the extra justification required. Time will tell how flexibly the Home Office approaches this, and whether people considered not to meet the “compelling practical or compassionate reasons” threshold will be able to appeal (if not, more judicial reviews beckon).

The guidance does not set out how the applicant is supposed to contact the Home Office to explain they could not travel, which is a fairly fundamental omission.

The guidance also refers to the Home Office checking whether there has been any “material change in circumstances” before it goes ahead and issues the EUSS family permit. The example given is where the sponsor has died. It seems unlikely that many sponsors will have passed away in the four months since 30 June and it is not entirely clear whether the Home Office intends to carry out systematic checks on material changes in circumstances for each and every case. Given what these families have already been put through, we would hope there are no extra burdens that prolong their separation.

Problem solved?

I mentioned that this only begins to provide a remedy. Although the concession allows dependent relatives to be granted EUSS family permits, once they arrive in the UK they are required – within three months – to apply for pre-settled status under Appendix EU to the Immigration Rules. This is to secure their right to stay long term.

But Appendix EU requires dependent relatives to be resident in the UK by the “specified date” of 31 December 2020. They do not count as “joining family members” who are allowed to enter after this date.

The Home Office has acknowledged that additional changes need to be made to facilitate the long-term residence of dependent relatives. At the moment, unfortunately, there is no concession and nothing in the Rules allowing this to happen.