Appendix EU and Appendix EU (Family Permit) have both received some updates in the latest Statement of Changes to the Immigration Rules. The accompanying explanatory statement gives an overview of the changes that have been made. The changes come into force on 9 November 2022. 

A few of the definitions in Annex 1 of the appendices have been removed, but not enough to significantly reduce the nightmare cross-referencing that is necessary when trying to navigate the qualifying conditions. The removal of some definitions has necessitated the amending of other definitions. Little is lost or gained in terms of qualifying conditions, with exceptions noted in this article. As is often the case, some of the changes are catching up with policy concessions that have been in place for some time.

Zambrano: derivative rights

Those familiar with Zambrano and derivative rights applications will be aware of the need to cross reference the requirements in Appendix EU, with the (mostly repealed), EEA Regulations to understand the qualifying conditions. The changes to the Zambrano and derivative rights definitions in Annex 1 mean that you no longer need to consult the EEA Regulations in this way as the qualifying criteria is now self-contained within Annex 1. Removing the need to reference the EEA Regulations accounts for the inclusion of new definitions of an “Exempt person” and “Primary carer” which form part of the qualifying conditions.

The Zambrano definition change reflects the outcome of the Akinsanya litigation leading to the Home Office policy announcement and caseworker guidance update in June 2022. This new approach to Zambrano – now incorporated into the definition – is subject to further legal challenge.

Teixeira & Ibrahim derivative rights applications are expanded to cover children of former self-employed EEA citizens and their primary carers. Previously, Appendix EU reflected EU case law* meaning this category only covered former EEA workers. However, the Withdrawal Agreement extends coverage to children of self-employed EEA citizens with Appendix EU amended to incorporate this extended scope.

Surinder Singh: qualifying British citizens

The changes to definitions associated with this route allow for a relevant child who has been born or adopted to a qualifying British citizen after the end of the transition period but before the family’s return to the UK, to be granted status. You can read more about Surinder Singh applications here. The definitions are tweaked to acknowledge that the qualifying British citizen might have returned to the UK ahead of the applying family member. The definitions also confirm the Sovereign Base Areas on Cyprus are to be treated as an EEA member state where a British citizen could be considered a worker, if they were posted there as of a member of HM Forces before the end of the transition period.

Specified date: required date

The changes here apply to the deadline to be resident in the UK and the deadline for persons to apply for status under Appendix EU.

The rules confirm that dependent family members (extended family members in EEA Regs money), can begin continuous qualifying periods after the end of the transition period. This tidies up the debacle that left extended family members no ability to qualify for pre-settled status if they had arrived in the UK after 31 December 2020, even if they held the documentation proving they were beneficiaries of the Withdrawal Agreement. Family members of qualifying British citizens might also be able to arrive in the UK and/or apply after the deadline of 29 March 2022, if it is accepted that there is good cause for the delay. For example, where an EUSS Family Permit was applied for by 29 March 2022 but it was not issued until after this date. In both cases, qualifying residence begins on the day of their arrival in UK.

In terms of the deadline to apply for EUSS status, the amendment to the required date definition allows a joining family member with limited leave outside of Appendix EU to apply before the expiry of their leave to enter or remain, rather than within three months of their entry to the UK. The same applies to joining family members who are exempt from immigration control, and who have 90 days from when they cease to be exempt to apply.

Appendix EU (Family Permit)

The same amendments to the Qualifying British citizen category noted above are made for EUSS Family Permit applications.

A new suitability refusal is inserted relating to “excluded person[s], as defined by section 8B(4) of the Immigration Act 1971”. Looking at this section of the 1971 Act, the lesser spotted excluded person applying to the EUSS will be rare and so it is not anticipated this new suitability ground will be invoked frequently. As with all suitability assessments under the EU settlement scheme, there is a distinction between conduct that took place before and after the end of the transition period, with conduct under the former requiring an assessment under the EEA Regulations before a suitability refusal can be issued (i.e. under EU law standards).

Where are we now?

Appendix EU continues to present a challenge. It is necessary to understand the fine print and would benefit from a total simplification overhaul. Outside of the amendments to the Appendices, the EUSS remains busy with high numbers of applications being made of which a good portion are late applicants (alongside joining family members and pre-settled to settled status “repeat” applications), even though it is well over a year after the end of the grace period. Refusal rates have increased significantly since the end of the grace period with the inference being more applications are being submitted without sufficient evidence of eligibility under the scheme. So far, the Home Office has been rightfully pragmatic with the approach to late applications and as far as I am aware, processes them based on eligibility rather than assessing the reason the applicant missed the application deadline. However, if high numbers of late applications persist, we are likely to see a change in policy to scrutinise these applications more closely.

The beginning of next month sees the Judicial Review hearing to test the lawfulness under the Withdrawal Agreement of the Home Office policy to abandon pre-settled status holders to the hostile immigration environment, if they fail to apply for settled status (or further pre-settled status, in the limited situations where this is possible), before their limited leave expires.

*With thanks to Nicole Masri from Rights of Women to being alert to the finer points of EU law.