The government continues to keep us immigration lawyers on our toes, and everyone else completely flummoxed, with yet another statement of changes to the Immigration Rules.

Thankfully, many of these changes are welcome as they plug gaps in the EU Settlement Scheme. But it is difficult to keep up with the constant tweaks: making them accessible and easy to understand would be helpful. Needless to say, that is not the case with this set of changes, which are implemented via a wholesale replacement of Appendix EU instead of a tracked change method. And don’t even bother trying to copy and paste anything from these documents: all that results in is an alphabet soup.

All the changes appear to take effect on 6 April 2020.

EU Settlement Scheme changes

It’ll take a while to uncover the minutiae, but as my wife would like to spend a little time with me this year, I’ll highlight only the core changes relating to the Settlement Scheme. Fair warning: it gets a bit technical.

Surinder Singh cases

The Surinder Singh route allows British citizens who have moved to another European Economic Area country or Switzerland to return with non-European family members, bypassing the strict rules on UK family visas that apply to people who have not exercised free movement rights.

The clock is ticking on Surinder Singh. The amendments confirm that, to use this route, the UK citizen needs to be resident abroad and exercising free movement rights before the end of the transition period. This is the quite specific time of 23:00 GMT on 31 December 2020. The previous version of the rules was not particularly clear on this.

The upshot is that people availing of the Surinder Singh route can return to the UK any time before on 29 March 2022 at — you guessed it — 23:00 GMT, so long as the relationship existed pre-Brexit. If the relationship was established during the transition period, the cut-off is 23:00 GMT on 31 December 2020.

Absences

Paragraphs 18 to 19A of the Immigration Rules provide that those outside the UK with indefinite leave to remain may resume their UK residence so long as they were not absent for more than two years, as well as satisfying some other requirements. What was not confirmed up to this point was how that rule will be squared with the promise that people with EU settled status — which legally speaking is a form of indefinite leave to remain — can retain it for up to five years rather than two.

Appendix EU now explicitly states that paragraphs 18 and 19A will not apply to those granted settled status under the Settlement Scheme.

The issue of absences and retaining settled status is still a complex one, so we will return to this in a later blog post. 

Unrecognised adoptions

Despite no longer being an EU member state, the UK must continue to follow the case law of the Court of Justice of the European Union concerning free movement rights handed down before the end of the transition period (and have due regard to case law handed down afterwards). The revised Appendix EU therefore reflects the case of SM (Algeria), covered by the excellent Nath Gbikpi in a previous post.

Briefly, a child who is placed under an Islamic kafala guardianship or similar arrangement is not a “direct descendant” of the guardian for the purposes of EU law. Unlike direct descendants, who have automatic rights of residence, a child in a guardianship situation would only have rights of residence if those are recognised by the UK.

What this means for the Settlement Scheme is that children in “non-adoptive legal guardianship orders” can now apply alongside a sponsor. Previously the scheme only permitted applications from children under formal adoptions.

The definition of “person who is subject to a non-adoptive legal guardianship order” is really quite specific and some guardianship arrangements may fall foul of it. For example, it requires the guardianship order to place permanent parental responsibility on the sponsor; the child must have lived with the sponsor since being placed under the guardianship; and a dependent family life must have been created. A child who is under a guardianship order but who lives away from the sponsor, perhaps for educational reasons, might not satisfy this definition.

For complex cases such as this, it requires a forensic understanding of the Appendix EU definitions to successfully apply for settled status.

McCarthy cases

Bear with me: this bit requires some background explanation. (And from here on in, when I talk about “EU citizens”, it’s shorthand for “citizens of the European Economic Area or Switzerland”).

Up until 2012, the UK treated dual British/EU citizens the same way as other EU citizens. That is, dual nationals could still rely on EU free movement rights to bring family members in, avoiding the stricter immigration system that applies to Brits.

This changed after the Court of Justice case of C-434/09 McCarthy. It established that dual nationals living in the country of their nationality who have never exercised free movement cannot rely on EU free movement rights. That ruled out bringing their family members into the home member state under the more lenient EU law system.

Following the McCarthy case, the UK amended the Immigration (European Economic Area) Regulations so that EU citizens who were also British citizens could not rely on free movement rights. But transitional provisions were put in place to protect family members of dual nationals who had already come in under the old system. Specifically, those who had applied for residence documents before either 16 July or 16 October 2012 (depending on the type of document).

This scenario is so niche that it was unintentionally omitted from Appendix EU. It therefore did not allow for family members covered under these transitional provisions to be able to transfer over to settled status using the Settlement Scheme.

The changes now allow these family members to get settled (or pre-settled) status. It is not clear whether they will need to apply on a paper form, like other people with complicated cases, or whether they can use the online EU Settlement Scheme process.

Expired documents for durable partners and dependent relatives

If you’ve read this far, I’ll assume you know what a “durable partner” and “dependent relative” are for the purposes of the EU Settlement Scheme. (If not, consult our Settled Status Handbook.)

You’ll also, no doubt, be all over the definition of the “relevant document” that durable partners and dependent relatives must possess to be eligible for the Settlement Scheme. This means a family permit, registration certificate, residence card, document certifying permanent residence, permanent residence card or derivative residence card issued by the UK under the EEA Regulations on the basis of an application made under the EEA Regulations before 1 January 2021. Simple, eh?

Basically, if you are a durable partner or a dependent relative you first need to obtain one of these relevant documents from the Home Office before applying for pre-settled or settled status. You need to have applied for the document before 1 January 2021. You then have until 30 June 2021 to apply to the Settlement Scheme. I would recommend applying for both as soon as possible.

Yesterdays’s changes relate to relevant documents that have expired. They ensure that if a durable partner or dependent relative has an expired relevant document it will not be an obstacle to relying on the corresponding period of residence. That is so long as, before it expired, they applied for a further relevant document based on the same family relationship and the document was issued before the settlement scheme application is decided.

It is still important for durable partners and dependent relatives to keep note of the expiration date of these documents and to obtain a new one or apply to the Settlement Scheme before they expire.

People excluded from refugee or humanitarian protection

An applicant will be refused under the Settlement Scheme if, to quote from the explanatory notes, he or she

has been or would be excluded from refugee or humanitarian protection, or Article 33(2) of the Refugee Convention applies or would do so, as they are a danger to the security of the UK, or applies as, having been convicted of a particularly serious crime, they are a danger to the community.

As with anyone who has a history of serious crimes or conduct, it is important for anyone in this position to get legal advice before applying.

Other Settlement Scheme amendments

There are some other amendments in addition to the ones above, but given the length of this blog post already I hope you’ll forgive a copy and paste from the explanatory notes: 

To delete the provision for a ‘no deal’ scenario previously made in Appendix EU, Appendix EU (Family Permit), Appendix AR (EU) and Part 9 of the Immigration Rules

A change to Appendix AR to allow new evidence to be submitted in an application for administrative review of a decision to cancel EUSS status at the border under paragraph 321B of the Immigration Rules (on grounds of deception), in line with other provisions for administrative review of decisions to cancel leave at the border on those grounds

An addition to Part 9 of the Immigration Rules (the general grounds for refusal) to allow for the cancellation of leave to enter granted by virtue of having arrived in the UK with an entry clearance that was granted under Appendix EU (Family Permit) where there has been a material change in circumstances since the family permit was granted. A cancellation decision on those grounds is also added to Appendix AR (EU) so that administrative review of such a decision will be available in accordance with that appendix

Other changes

Tier 2

The salary threshold required for indefinite leave to remain for those on a Tier 2 (General) visa will no longer increase in the next few years. The explanatory notes say that this is down to a recommendation from the Migration Advisory Committee in its most recent report. This is achieved by deleting paragraph 245HF (d)(vi)(4) – (8) of the Rules.

Archaeologists are now on the Shortage Occupation List after being accidentally left out.

Youth mobility scheme

The quota for Tier 5 (Youth Mobility Scheme) visas for Australians, New Zealanders and Canadians has been reduced by 1,000 each for 2020/21. As we understand it, these quotas are set by looking at how many Brits went to these countries on the equivalent working holiday visa last year. Fewer Brits going to Australia means fewer Australians allowed into the UK the following year, essentially.

Permit free festival list

This has been updated. No longer included for 2020/21 are Africa Utopia, Cornwall International Male Choral Festival and Manchester International Festival. Newly added are Edinburgh International Book Festival and London International Festival of Theatre. This may prove academic in the age of coronavirus.

If we’ve missed anything significant, let us know.