An EU citizen, or their spouse or civil partner, is entitled to have his or her dependent parent continue to live with them or join them in the UK under the EU Settlement Scheme. This has always been the case since the scheme began. But one particularly confusing aspect, even for us lawyers, was the meaning of ‘dependent’ as defined in Appendix EU and how dependency is determined, if at all, by the Home Office.
Appendix EU to the Immigration Rules defines a dependent relative as “the direct relative in the ascending line of a relevant EEA citizen (or of a qualifying British citizen) or of their spouse or civil partner”. It goes on to say:
‘direct relative in the ascending line’ includes a grandparent or great-grandparent; and […]
the dependence of the direct relative in the ascending line on the relevant EEA citizen (or on the qualifying British citizen), or on their spouse or civil partner, is assumed.
The presence of the word “assumed” is the troubling part. Does this mean that the Home Office accepts dependency by virtue of the family relationship i.e. a person is a parent and therefore is dependent and it does not matter whether the parent is in any way really dependent at all? Alternatively, does it mean that, for the purposes of the application, the Home Office will not ask for evidence of dependency but the parent must actually be dependent as a matter of fact in real life in order to succeed and, crucially, retain their status going forward?
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This matters, because in UK law dependency is historically pretty hard to prove in parent and grandparent cases. In EU law it is a little easier but there have been a lot of cases about it, all the way up to the Court of Justice. It is not a straightforward concept and it is not easy to prove.
The question has split lawyers. Some suggest dependency is irrelevant: the parent succeeds whether or not they are actually dependent. Others say that dependency as a matter of fact is required, otherwise the word would not be included within the definition. On this view, the purpose of including the word “assumed” is simply to reduce the burden of evidence and assessment at a time when expediency of processing times is crucial.
Does the Home Office guidance help us?
Home Office guidance document EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members states:
Their dependency on the relevant EEA citizen (or qualifying British citizen) or on the spouse or civil partner is assumed and the applicant is not required to provide evidence of this.
This tells us that dependancy is required, but practically, evidence will not be requested at the point of applying. But the structure of the guidance is not very helpful. For example, the section “Child aged 21 or over” goes to some lengths to set out what “dependent” means. Dependency is also explained in the “dependent relative” (family member other than spouse, civil partner, durable partner, child or dependent parent) section. But for the section relating to “dependent parent” there is no explanation what dependent means, only that it is assumed.
The guidance to applicants doesn’t take us any further. So where do we find the answers?
Recent statement of changes to the Immigration Rules
This confusion has been clarified by statement of changes HC2631, dated 9 September 2019. The change occurs in the amendment to the definition of ‘dependent relative’ quoted above, which from 1 October 2019 will read:
the dependence of the direct relative in the ascending line on the relevant EEA citizen (or on the qualifying British citizen) – where the relevant EEA citizen or the qualifying British citizen is not a person under the age of 18 years, or on their spouse or civil partner, is assumed.
This change now requires evidence of dependency where the parent or grandparent (or great-grandparent if they are still with us) is dependent on the relevant EEA citizen where that citizen is under 18. This tells us by implication that dependency as a matter of fact is required in all cases, but where the EEA citizen is over 18 evidence of dependency is not required to be provided at the point of applying.
Will evidence of dependency be requested during the application process?
There is nothing in the current guidance that suggests the Home Office will ask for evidence of dependency and there is the question of whether it is entitled to do so when its own Rules say it will assume dependency. As at the time of writing I have not heard of any such requests.
What happens to parents who are not dependent but have been granted a status?
Parents or grandparents of EEA citizens are being granted pre-settled status and settled status by proving their family relationship but not supplying any evidence of dependancy. Some will be dependent on the EEA citizen. Others might be dependent but at a level that the Home Office would not consider as being dependent, had they checked. Others might not be dependent at all. The question is, what happens to the status of those individuals if the Home Office ever asks for dependency later.
If the Home Office discovers that a parent is not dependent, or does not in their opinion, appear to be dependent, the status could be could arguably be curtailed because they would cease to meet the requirements of the rules on which the leave was granted. The September 2019 statement of changes made further amendments to be able to cancel a status on arrival in the UK or from outside the UK if the person ceases to meet the requirements of the Rules.
But can and will the Home Office check those who have been granted settled status? This may become an issue for those granted pre-settled status and who need to apply for settled status later. The Home Office could well amend the Rules later to require all parents, grandparents and great grandparents, regardless of the age of the EEA citizen, to evidence dependency. They may well do so when their resources allow them time for more scrutiny of applications after the majority of people have applied under the EU Settlement Scheme. Assuming such a rule comes into force, a parent who was not dependent, or not dependent to a level that would satisfy the Home Office, subsequently applies for settled status their application would face some difficulties.
The situation is still not straightforward. If the Home Office line is that dependency has to be real then it would have been more honest and more clear, though a considerable burden on everyone involved, to require all parents and grandparents to evidence dependency from the get-go. As it stands, some parents and grandparents would be treated differently to others, and there is a question of unfairness in that approach.
Then there is the particularly troubling drafting of the rule. Can it be said that the parent met the requirements of the rules, whether dependent or not, because at the point they applied they satisfied them and it was the Home Office that chose to assume this? Can a parent who was not dependent at the point they were granted a status be protected should they later become dependent before any curtailment or cancellation process begins?
It is all remarkably confusing and complex for a scheme that is intended to be anything but. All this would have been solved by way of a declaratory process rather than forcing applications to be made.