Appendix EU of the Immigration Rules was introduced at the end of August 2018 to implement the post-Brexit settled status scheme which will enable EU citizens and their family members living in the UK to remain after Brexit.

When reviewing the new rules, eagle-eyed immigration lawyers may have noticed that there was no reference to members of an EU national’s “household”. This was concerning. Under EU free movement law, a member of an EU national’s household can obtain a right of residence in the UK as an extended family member. They must be a relative of the EU national and live under the same roof as them, but do not necessarily need to be dependant (as this is a separate category). Their rights are not automatic and are therefore weaker than direct family members such as spouses and children; however the UK has an obligation to facilitate their entry.

In November 2018, the Law Society of Scotland’s Immigration & Asylum Sub-Committee (of which I am a member) wrote to the Home Secretary highlighting that:

Those who… are residing in the UK as extended family members on the basis of their membership of the EEA national’s household do not appear to have any right to pre-settled or settled status under Appendix EU. They will need to either become dependant on the EEA national or leave the UK. The definition of family member within Appendix 1 of Appendix EU does not include members of the EEA national’s household. It includes other extended family members, such as durable partners and dependant relatives, however not household members. The definition of ‘dependant’ does not include membership of the household, so it does not appear that the two categories have been merged. Rather household membership appears to have been completely excluded.

There therefore appears to be a group of people, currently residing in the UK on the basis of EU free movement law, who will be unable to transition to the new settled status scheme. This does not accord with the government’s suggestion that EEA nationals and their family members (as currently defined, i.e. including all extended family members) would be able to remain in the UK after Brexit.

The statement of changes introduced on 20 December, covered by CJ yesterday, fixes this problem. The definition of “family member” has been amended to include members of an EU national’s household. It appears that, when Appendix EU was first drafted, they had simply been forgotten about! Thankfully this has now been fixed.