Over the summer, the Home Office published Border Force guidance explaining how those with status under the EU Settlement Scheme (EUSS) should be treated when entering the UK. The guidance also addresses pending EUSS applications and those who may be eligible but have yet to submit an EUSS application (late applicants who need to show reasonable grounds for missing the deadline). Sponsored family members and joining family members are also covered in the guidance.

Although the guidance published on 15 July 2024 is version one, this incorporates much of the approach set out previous guidance. However, there are some significant additions to what previously existed and those will be covered in this article. Version two of the guidance was published in September 2024, removing an erroneous reference to a power to cancel pre-settled status that does not actually exist in Appendix EU.

I have used “EU citizens” to include EEA and Swiss citizens as generally there is no distinction in the guidance, though it does state that the UK Swiss Agreement does not provide for the automatic acquisition of permanent residence.

Why is this guidance necessary?

Brexit and the introduction of the EUSS created a highly complicated situation whereby EU citizens and family members with declaratory rights under the Citizens Rights Directive had to be granted a UK immigration status to remain lawfully resident after the “transition period” ended on 31 December 2020. There was a grace period until the end of June 2021 for those eligible to make an application, though late applications can still be accepted.

At the same time as the UK exited the EU under the terms of the Withdrawal Agreement, the EU/UK Trade and Cooperation Agreement came into effect providing EU visitors to the UK visa free entry (subject to satisfying the visiting rules). Separating out the rights of these two cohorts to enter the UK can be complex and the previous guidance attempted to cover both cohorts in one guidance. This approach has changed, with the new guidance only covering EU citizens and family members connected to the EUSS.

You might think it would be relatively straightforward to produce guidance on the rights of entry for persons with EUSS status. However, a unique feature of the EUSS – and the thing that seems to have created the most issues at the UK border – is that unlike other immigration applications, there is (in theory) the right to travel freely whilst awaiting an EUSS decision.

This is not the case for other in-country extension / permission applications, as travel outside the Common Travel Area withdraws an application. Nor with Entry Clearance applications, where the applicant is generally not able to travel to the UK until the visa is issued.

Applications under the EUSS can be made both in-country and out of country, but the rules and policy relating to whether pending EUSS applicants are entitled to exit and return to the UK, or to travel to the UK having applied outside, are complex and contentious. But first to look at those granted pre-settled and settled status under the EUSS.

Travel once EUSS status is granted, simple right?

As status granted under the EUSS is digital only for EU citizens, one of the main points to emphasise to status holders is the need to update their UKVI account with changes of travel document (either passport or EU national ID card). This is because the Home Office systems will link the travel document used for travel and entry with the digital status held on the Home Office systems.

If a pre-settled or settled status holder has not linked their travel document to their UKVI account, it may take longer for Border Force to establish that they have EUSS status. This is because it will not be immediately apparent that they have EUSS status, as the travel document and the digital status are not linked and so the system cannot produce instant confirmation of the status.

The need to link travel documents to the UKVI account will become more important once Electronic Travel Authorisation is rolled out to EU citizens in April 2025, as the initial check on a persons’ immigration status or permission to travel to the UK, will be carried out by carriers rather than at the UK border.

The above comments about updating travel documents aside, settled status holders should not have an issue crossing the border. Is the same true of pre-settled status holders though? You would think so however, one of the new additions to this Border Force guidance is a section on cancelling pre-settled status entitled “Ceasing to meet, the requirements of Appendix EU”.

It is important to understand that cancellation powers for Border Force to remove pre-settled status are not new, but the emphasis on pre-settled status holders continuing to meet the conditions of their EUSS grant, is not something that has been covered in previously published Border Force guidance.

Concerns about the treatment of (joining) family members who may have their right to pre-settled status challenged, due to the relationship with their EU sponsor ending has already been documented. The Border Force guidance now includes cancellation of status where a family relationship has ended and there is no retained right of residence. The guidance also indicates that EU citizens who have pre-settled status could face scrutiny on whether they continue to be entitled to hold status due to excessive absences outside the UK:

An individual who holds pre-settled status may cease to meet the requirements for that leave if, for example:

• they have not maintained their continuity of residence in the UK in accordance with the definition under Appendix EU of ‘continuous qualifying period’
• they are no longer the family member of a relevant EEA citizen (or of their spouse or civil partner) and do not meet the definition under Appendix EU of a ‘family member who has retained the right of residence

Arguably, except in the most extreme situations, for example, a person who admits to Border Force that they were present in the UK for one day in 2020 to obtain their pre-settled status and have only spent one week per year in the UK since, it is inappropriate for Border Force to be examining whether pre-settled status holders have broken continuous residence and / or have acquired permanent residence under the Withdrawal Agreement. Likewise, understanding whether a family member has a retained rights of residence is almost certainly not going to be a straightforward job for Border Force to undertake.

All these assessments are complicated and require detailed consideration of residence evidence, exemptions for extended absences (for example, due to the COVID-19 pandemic) and treaty rights evidence in the case of pre-settled status holders claiming to have acquired permanent residence. Retained rights of residence need an assessment of the family relationship history and in cases of relationship breakdowns, the facts about the causes of the breakdown and access to children where applicable.

As if that was not enough, pre-settled status can only be removed in these circumstances if it would be proportionate to do so. So the guidance also includes a list of factors that Border Force need to consider to ensure it is not disproportionate to cancel status.

The guidance to a degree acknowledges these complexities with an instruction to Border Force to refer unclear situations to the Status Review Unit for further investigation.

Where there is not sufficient evidence available to you at the border to cancel EUSS status, but you suspect there may be grounds to consider curtailment or conduct further investigations, you must refer the case by email to the SRU, in line with the guidance in this section, using the Curtailment Referral Form.

I would suggest in the majority of cases, this will be the appropriate action in order to move this highly stressful and complex process away from the UK border. It is unclear to what extent Border Force are engaging with pre-settled status holders at the border or if there are any factors that would trigger an examination.

Any decision to cancel pre-settled status at the UK border for these reasons would carry the right of appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020 however, note that for “cancellation decisions taken at the border, there is no right to enter the UK but an appeal right can be exercised from out of country”. This means a person who status is cancelled could lose their right to live in the UK for the duration of the appeals process, which currently stands at 44 weeks on average.

Travelling with a certificate of application

Pending EUSS applicants are issued with a certificate of application which provides them “temporary protection rights” (section 3C on steroids if you like) while the Home Office processes the application. The certificate of application includes a section on “Travelling in and out of the UK”, which in this example from late 2023 stated:

Subject to the usual immigration, customs and health checks at the border, your certificate of application allows you to travel in and out of the UK pending a final decision on your application, including during any appeal.

But now in August 2024 says:

You are advised not to travel in or out of the UK pending the outcome of your application, including any appeal.

There has been no change to the Withdrawal Agreement requirement for pending EUSS applicants to benefit from temporary protections under Article 18(3), so what is going on with the apparent change in policy relating to travel? The Border Force guidance sheds some light on Home Office thinking regarding temporary protection rights in terms of travel:

However, those rights do not include the right to enter the UK solely on the basis of the Certificate of Application. The person will need to provide additional evidence, as set out in this guidance, to show that they should be granted entry to the UK, pending the outcome of their EUSS application and any administrative review or appeal.

This will probably come as shock to someone with an older certificate of application who might well have thought based on the wording, that their right to travel is protected by the Withdrawal Agreement. Such thoughts appear well founded as per the European Commission’s legal assessment, which states in response to the UK’s approach:  

In the Commission’s view, the Withdrawal Agreement provides that a person who has a valid certificate of application issued under Article 18(1)(b) of the Withdrawal Agreement has a right of entry and residence in the host State as long as there is no final decision on the application for Withdrawal Agreement beneficiary status.

The opinion goes on to state that the Commission is attempting to resolve this matter with the UK. However, presently for practical purposes the guidance will be applied by Border Force, meaning that those with certificates of application need to be very careful if they plan to leave the UK temporarily, or travel to the UK having applied to the EUSS from outside.

Applications to the EUSS can be in time or can be made late if there are good reasons. They can be made inside or outside the UK, and they can be made by EU citizens or family members who in turn, could be visa or non-visa nationals who may or may not, have previously been granted an EUSS Family Permit.

In other words, there are a lot of moving parts which means advising an EUSS applicant whether they can enter the UK with a certificate of application is a minefield. This is exemplified by the guidance which sets out in several tables from page 54, which certificate of application holders may be allowed to enter the UK and the evidence that may be required to avoid being refused entry.

Very broadly speaking, EU citizens with a certificate of application who were resident by 31 December 2020 with an in time EUSS application should be able to enter the UK. Citizens resident by 31 December 2020 who have applied late to the EUSS, may also need to show evidence of residence by 31 December 2020 and that residence has been maintained.

Although the table in the guidance does not cover Administrative Review or appeals against refusal decisions for these persons, it seems that Border Force officers will often take the refusal decision as proof that the EU citizen was not resident by the cut-off date or, has broken their continuous residence due to excessive absences. This makes if far harder for someone with a refused application to enter the UK, even though they have not yet had a final outcome on their EUSS application.

Family members resident by 31 December 2020 – who will be non-EU nationals – can use a certificate of application and documentation issued under the EEA Regulations, or evidence of their family relationship and of their continuous residence by 31 December 2020. Joining family members cannot use a certificate of application to enter the UK unless they also have an EUSS Family Permit, as long as their EUSS application has not been refused and is subject to Administrative Review or appeal.

Remember, when advising family members, that those who are visa nationals may not even make it to the UK border as the guidance states that their certificate of application is not “a visa or entry clearance document”, meaning it cannot be accepted by a carrier to bring a visa national to the UK.

Given the myriad of factors to take into account and the uncertainty that the guidance will be consistently applied at the border, unless the situation is resolved and the European Commission’s position regarding certificate of applications affording temporary protection prevails, it will be increasing problematic for pending EUSS applicants to enter the UK relying on a certificate of application.

What about those who could be eligible but have not yet applied?

EU citizens and family members who may be eligible to make a late EUSS application will not have a certificate of application. Therefore, in the absence of another basis to enter the UK, for example existing non-EUSS indefinite leave to enter or remain, the guidance states there is no right to enter the UK to make a late EUSS application.

In previous guidance, there was more flexibility afforded to allow entry using leave outside of the rules or immigration bail, where a person arriving to the UK appeared that they may be eligible to make a late EUSS application (and there were sufficiently compelling reasons to permit entry). As of 4 July 2023, the updated policy indicates that immigration bail should not be used to facilitate the making of a late EUSS application although, there is still the ability to grant leave outside of the rules where Border Force, “are satisfied that there are sufficiently compelling, compassionate circumstances as to justify a grant”.

Examples given in the guidance are children whose parents have applied to the EUSS but have not yet applied for the child and vulnerable persons, particularly those who lack mental or physical capacity to make an EUSS application themselves. Note however, the guidance now specifically excludes person who have an “unexpired” document issued by under the EEA Regulations 2016 from being permitted entry to make a late EUSS application, in the absence of other compelling factors.

This is despite the EUSS caseworker guidance on late applications clearly acknowledging that those with EEA Regulations 2016 documents and those who have “travelled in and out of the UK since 30 June 2021 without being signposted to the scheme” – as many persons with these documents have been able to – are likely to have good justification for making a late application.

If a person who has not yet made their EUSS application is permitted entry to the UK (including where immigration bail is granted) and then makes a valid late application to the EUSS, this may provide them temporary protection to remain in the UK whilst the application is processed. This makes sense, as under the Withdrawal Agreement a certificate of application is evidence of temporary protection rights, which includes the right of residence until a final outcome on the EUSS application.

However, the guidance muddies the waters with respect of this by listing example situations where the Home Office believes that, notwithstanding the certificate of application, there is basis to remove a pending EUSS applicant from the UK. It seems eminently possible that removal directions issued against an EUSS applicant with a certificate of application, could be successfully challenged on the basis that removal of a pending EUSS applicant breaches the Withdrawal Agreement right to temporary protection.