Frequently asked questions: family member applications to the EU Settlement Scheme

There is no requirement for durable partners to have cohabited in the UK. Whether a relationship was durable by 31 December 2020 is a question of fact based on the individual circumstances of the couple. There is no requirement to have lived together at all to be in a durable relationship (e.g. cultural or religious reasons may mean a couple have lived apart despite being in a durable relationship – see Home Office guidance).

However, if there has been no (or limited) cohabitation, or the cohabitation was outside the UK, then it will probably be necessary to provide a detailed explanation to the Home Office about the history of relationship and the couples’ choice in terms of where they have lived.

It is not per se necessary for the children to be born before the end of the transition period to be relevant to showing the relationship was durable by this date. However, children born a considerable time after the end of the transition period may not provide much assistance in terms of demonstrating the situation on 31 December 2020 (however, as there is a requirement to show an ongoing durable relationship at the date of application or when moving from pre-settled to settled status, children born to the couple at any time would be relevant to showing this condition is met).

My understanding is that currently the Home Office policy is to extend all pre-settled status automatically without any consideration as to whether the holder continues to qualify. This is unless there is an event that triggers a Home Office investigation, such as one party notifying the Home Office the relationship has ended (see Nicole Masri’s informative write up on triggers for curtailment action). So in principle, durable partner relationships that have broken down will not impact the sponsored party getting an extension of pre-settled status, if the Home Office is unaware of the breakdown.

The issue will come if / when the Home Office investigates their situation to determine whether the person can be upgraded to settled status, as it is possible at this point the Home Office will move to curtail status on the grounds that they have not completed five years as a family member. However, a decision to remove status must be a proportionate and take all relevant factors into account (as per Annex 3 of Appendix EU).

In the context of durable partners, it does seem permissible to require them to leave the UK and break continuous residence to then reapply (see this Home Office correspondence), as the Withdrawal Agreement follows the Free Movement Directive in terms of distinguishing between direct family members and extended family members (the latter covering durable partners).

Under the Free Movement Directive, extended family members must apply for facilitation of their residence under national legislation and the Withdrawal Agreement takes the same approach. The courts have found that applying to the EUSS instead of the EEA Regulations is not an application for facilitation under the Withdrawal Agreement and as such, the person can derive no Withdrawal Agreement protection. Therefore, a durable partner in this position is unable to argue a breach of the Withdrawal Agreement in terms of being required to leave the UK to make a joining family member application.

The EUSS does not prevent joining family members applying if they are in the UK under the visiting rules. However, as discussed during the training session, the applicant would have to satisfy the EUSS deadline which is now taken as three months from the first date the joining family member has entered the UK from 1 January 2021.

If the application date is after three months the joining family member must provide reasonable grounds in the application for it to be valid. Serious medical grounds, such as in this case, could meet the reasonable grounds test for not applying within three months of the first visit (if this applies to this situation – see Home Office guidance).

My understanding is that the Home Office does not consider applying to the EUSS whilst in the UK with visiting permission to fall under the definition of a specified enforcement case. I have never heard of a joining family member application from someone who entered as a visitor being classified in this category. 

A certificate of application does not prevent a person from receiving public funds, if the holder meets the underlying eligibility criteria for the benefit.

No, there is no deadline for joining family members to apply for EUSS Family Permit (which will be made outside the UK). If the EUSS Family Permit is successfully obtained, the person has until the expiry date of the permit to apply for pre-settled or settled status after they have entered the UK.

Joining family members can only sponsor family members under Appendix FM/Appendix Adult Dependent Relative/other immigration rules once they have obtained settled status/ILR. Though note, not all EUSS family relationships have an equivalent under other parts of the rules and so a joining family member being granted ILR will not open up family sponsorship completely (e.g. Appendix ADR is not equivalent to dependent parents under Appendix EU).

Yes, as long as the family relationship is an eligible one (e.g. spouse, civil partner etc) and existed by 31 December 2020 then it is covered by the EUSS. Children born after 31 December 2020 are also covered. Note the answers in questions 5 and 8 in terms of how deadlines under the EUSS operate for joining family members.

The Appendix EU rules allow for a non-EEA applicant to use the ID App and apply from outside the UK if they have a valid biometric residence card (BRC). It is likely that most BRCs issued under the EEA Regulations have now expired, but it is possible that there could be some valid BRCs still in circulation which could be used with the scanning app (valid in the sense that the expiry date has not passed, not valid in the sense that legal rights attached to the BRC continue as these ceased on 01 July 2021). If an applicant is outside the UK and cannot use the ID App, in most cases they will need to apply for an EUSS Family Permit and then apply to the EUSS once in the UK.

EU citizens living in the UK before the end of the transition period need to hold an immigration status to remain lawfully resident in the UK. Some EU citizens may hold valid ILR not issued under the EUSS, which means they do not need to apply to the EUSS (though they can if they want and probably should do as a) settled status is a better form of ILR then they already hold b) if their ILR is a physical ‘legacy’ document, then it may be preferrable or necessary to hold an eVisa to prove rights).

If you encounter and EU citizen without immigration status who was living in the UK by 31 December 2020, the most likely avenue to resolve the situation will be a late application to the EUSS (subject to meeting the criteria). See the Home Office guidance at the bottom of the page which covers submitting a late application in these circumstances.

If an EU citizen has been granted pre-settled status without being resident in the UK by 31 December 2020 (and not as a joining family member), then the likelihood is they are not entitled to hold that status (as they do not meet the fundamental condition of the Withdrawal Agreement to be resident by the end of the transition period).

The definition of a relevant sponsor in Appendix EU requires the EU sponsor (who holds pre-settled or settled status) to have begun a continuous qualifying period in the UK before the end of the transition period. Therefore, if the sponsor cannot meet this condition the joining family member application cannot succeed. In time the Home Office may seek to curtail the status of the EU citizen on the grounds they never met the conditions of the EUSS (as per Annex 3 of Appendix EU).

If the child is not related to the EU sponsor then they cannot be sponsored as a joining family member if the couple are not married or in a civil partnership.

I understand this to mean there was an incorrect decision to grant Appendix FM entry clearance based on a joining family member sponsor who is not settled, and when the spouse has attempted to apply for leave to remain under Appendix FM they have been refused (as the joining family member sponsor is still not settled). If this is the scenario it is likely to be necessary to appeal against the refusal and argue that given the Home Office incorrectly granted entry clearance, it would be disproportionate under Article 8 to refuse to extend leave to remain (it is obviously helpful to the argument if the Appendix FM conditions are otherwise met).

As discussed in the training session, dependency is a factual assessment and therefore, if the Home Office refuses an application on the grounds that they do not consider dependency to be established, it is likely to necessitate an appeal to the Tribunal as the immigration judge will be able to assess all the evidence and facts. The more unreasonable the Home Office refusal points on dependency the stronger the case. If there is evidence of dependency that was not submitted with the application, it may be preferrable to submit a fresh application than appeal the refusal (though the Home Office could refuse again which would then need an appeal).

It appears that the Home Office in this refusal is saying that there are other funds available to the applicant, which means that they do not require financial support from their sponsor to meet their essential needs. This may be a legitimate position to take depending on what funds are available to the applicant other than the financial support being provided by the sponsor. This emphasises the importance of detailed representations and evidence in EUSS applications that require dependency to be established.

It is not clear who is acting as the EU sponsor in this situation the children or the husband. If it is the children they a) must be Lounes / Qualifying British Citizen dual nationals b) the mother must be dependent on one or both of them. On the point of applying after being present in the UK for more than three months (noting that since 8 October 2024 this is calculated from the first entry to the UK from 1 January 2021), the joining family member applicant will need to provide reasonable grounds for making a late application.

It may be in this case the intention was to leave the UK after visiting (the implication is the mother entered as a visitor), but this was not possible due to the deterioration of the husband’s health. If this is the case, then a late EUSS application made in the UK would appear to meet the reasonable grounds test as set out in the Home Office guidance.

If the mother (or father) of the child holds settled status based on being resident in the UK by 31 December 2020, then the child born outside the UK could apply to be granted settled status as a joining family member. If the child is Romanian and has a biometric passport or national ID card they can use the Home Office scanning app to apply directly to the EUSS.

The Home Office does not consider that the five-year allowance for pre-settled status holders before leave lapses to have retrospective effect (this is how the amendment to the Order reads, also see this guidance under the heading “Spending time outside the UK if you have pre-settled status”). This means that where a two-year absence occurred before 21 May 2024, the Home Office treats the pre-settled status to have lapsed.

One situation where this cannot apply is where the pre-settled status holder has already acquired a right of permanent residence under the Withdrawal Agreement before they had a two year absence, as they then have an allowance of five years before their permanent residence would be lost. The direct effect of the Withdrawal Agreement means that the pre-settled status cannot have lapsed under the domestic Order, as this would be incompatible with the Withdrawal Agreement.

There may be a question as to whether the lapsing leave legislation is compatible with the Withdrawal Agreement, in the context of removing residence status without giving the status holder the decision that their status has been taken away (I am not aware that this point has been considered by the courts yet).