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New statement of changes to the Immigration Rules: HC 1849


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A new statement of changes to the Immigration Rules was laid on 20 December 2018. It follows hard on the heels of another set published on 11 December, but these latest changes are to do with the EU Settlement Scheme rather than ranging across the immigration system.

The Home Office has announced that the Settlement Scheme, under which EU citizens living in the UK can apply to stay after Brexit, will be rolled out for public testing from 21 January 2018 following two pilot phases. What the statement of changes does is make that happen on a technical level, by activating Appendix EU for those who qualify for the public test. Those are “resident EU citizens (and their EU citizen family members) with a valid passport” and “their non-EU citizen family members holding a valid biometric residence card”.

This means that EU citizens with a national ID card instead of a passport will not able to apply from January. The Home Office says that they will be able to do so when the scheme is fully open, from 30 March 2019.

That is not all that it does, however. There are also substantive changes to Appendix EU.

First, the controversial suitability provisions have been softened. Paragraph EU15 provides for the mandatory refusal of an application where “the applicant is subject to a removal decision under the EEA Regulations on the grounds of their non-exercise or misuse of rights under Directive 2004/38/EC”. The change means that the applications “may” rather “will” be refused for this reason; in other words, a removal decision will now be a discretionary rather than mandatory ground for refusal. This may be aimed at warding off a legal challenge to the suitability requirements by the charity JCWI. Nevertheless the Immigration Law Practitioners’ Association “retains grave concerns” about the suitability provisions.

Second, there is a new paragraph 321B in the general grounds for refusal to allow for people with settled status under Appendix EU to be denied entry to the UK if justified under regulation 27 of the EEA Regulations. This is explained in the explanatory notes as “to provide scope for the cancellation of leave granted under the scheme where the person is refused admission to the UK on EU law public policy grounds”.

There are also “changes… to clarify the evidential requirements for family members” and that “for now, an application for administrative review of a decision under the EU Settlement Scheme has to be made in the UK”.

A full report on the initial pilot schemes will be published in January. The notes do say that all applications processed so far (12,400) have seen settled or pre-settled status granted. However, 23% of those who provided feedback seem to have found the process difficult in some way (at least, not “easy” or “very easy”).

The government also published today two separate agreements on the rights of Swiss and Icelandic/Norwegian/Liechtensteinian nationals. As expected, these non-EU citizens will also be able to apply under the EU Settlement Scheme.

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CJ McKinney

CJ McKinney is a specialist on immigration law and policy. Formerly the editor of Free Movement, you will find a lot of articles by CJ here on this website! Twitter: @mckinneytweets.