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Upper Tribunal confirms undocumented extended family members cannot benefit from EU Settled Status scheme
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Extended family members who have made an application under the EU Settlement Scheme, without having first obtained a residence document under the Immigration (EEA) Regulations 2016 are not entitled to settled or pre-settled status. This is the conclusion of the Upper Tribunal in Batool and others (other family members: EU exit)  UKUT 00219 (IAC).
The Tribunal also decided that appellants cannot rely on their human rights in EU Settled Status appeals, unless the Home Office consents to this. This aspect of the decision will be considered in a separate blog post, coming soon.
Extended family members and the end of the Brexit transition period
Extended family members did not have automatic rights under EU free movement law in the same way that direct family members did. This meant that they had to apply for a residence document under EU free movement law before 31 December 2020 – when EU law ceased to apply in the UK.
Extended family members include unmarried partners, relatives who are dependent on the EU citizen, member of the EU citizen’s household, and those who require the personal care of the EU citizen on health grounds. A direct family member is a spouse or civil partner, a child under the age of 21, a dependent child over 21, or a dependent parent.
As noted in Batool there is a “fundamental distinction” between these two different types of family member. For extended family members, the UK has an obligation to “facilitate” their residence but can refuse to issue a residence document after undertaking an “extensive examination” of their personal circumstances.
“…other family members never enjoyed automatic residence rights under EU law. Not only did an individual have to satisfy the definition of other family member (extended family member under the 2016 Regulations); they also had to be the beneficiary of a positive exercise of discretion, recognised by the grant of residence documentation (albeit that such discretion was not unfettered: see Rahman).” 
Without a residence document it is not possible to meet the definition of “durable partner” or “dependent relative” in Appendix EU and Appendix EU (Family Member) of the immigration rules.
Valid application for facilitation
In Batool the appellants sought to get around the requirement to have first obtained a residence document by arguing that their EUSS application should have been treated by the Home Office as an application for “facilitation” under the 2016 Regulations. After all, the Withdrawal Agreement requires administrative procedures to be “smooth, transparent and simple” and application forms to be “short, simple, user-friendly and adapted to the context of this Agreement”.
The Upper Tribunal did not accept that the Home Office had failed to comply with these requirements:
“The guidance on www.gov.uk, however, shows that the Secretary of State has been at pains to provide potential applicants with the relevant information, in a simple form, including highlighting the crucial distinction between “close family members” and “extended family members”. That is a distinction which, as we have seen from the Directive and the case law, is enshrined in EU law. It is not a novel consequence of the United Kingdom’s leaving the EU. It is, accordingly, not possible to invoke subparagraphs (e) and (f) of Article 18 as authority for the proposition that the respondent should have treated one kind of application as an entirely different kind of application.” 
If an application under the EU Settled Status Scheme could be treated as an application for “facilitation”, the Withdrawal Agreement would apply. This is because, under article 10(3) of the Withdrawal Agreement provides that people who applied before 31 December 2020 shall retain their right of residence in the UK.
However, an application for “facilitation” must be made under EU free movement law (i.e. Directive 2004/38/EC, implemented in the UK by the 2016 Regulations):
“It is… plain that Article 10.3 encompasses those who apply for entry or residence as other family members. The expression “facilitation” in the context of the preceding phrase “persons falling under points (a) and (b) of Article 3(2) of Directive 2004/38/EC” puts that beyond doubt. The appellants’ applications were not made on the basis that the Secretary of State should exercise discretion in their favour, as part of her obligations as identified by the CJEU in Rahman. The application material makes it crystal clear what the basis of the applications was. The appellants applied on the basis that they were family members.” 
As highlighted earlier in the determination:
“In order to make a valid application, a person needed to have complied with regulation 21 of the 2016 Regulations. That required an application to be submitted online, by post or in person, using a specified application form. It is common ground that the appellants did not make a valid application for an EEA family permit in accordance with regulation 21, before the end of the transition period even though they could have done so.” 
As Mr Batool had not made a valid application under the 2016 Regulations before 31 December 2021, he could not benefit from the Withdrawal Agreement or the EU Settled Status scheme.
In my own view, this is consistent with the wording of article 10(3) which refers to family members “who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter”.
This envisages a two-stage process:
- An application for facilitation under EU free movement law before 31 December 2020. In the UK, this was done under the 2016 Regulations.
- Facilitation of residence “in accordance with national legislation” after 31 December 2020. In the UK, the “national legislation” referred to is Appendix EU and Appendix EU (Family Permit) which implement the EU Settled Status Scheme.
This second stage only applies to people who have completed the first stage. As highlighted in Batool (and on this blog here and here), people who have completed the first stage can benefit from the EU Settled Status Scheme notwithstanding the repeal of the 2016 Regulations:
“If the appellants had applied under the 2016 Regulations as extended family members, then the effect of the transitional provisions would have been such as to require the respondent to reach a decision, even after 31 December 2020, on whether their residence should be “facilitated”. In the event of a negative decision, a right of appeal would have lain to the First-tier Tribunal. As a result of a concession by the Secretary of State, now contained in immigration rules, a decision in the appellants’ favour would have led to the grant of leave, rather than the provision of EU (EEA) residence documentation (which is no longer available).” 
The EU Settled Status Scheme is the post-Brexit manifestation of EU free movement law. It is designed to ensure that everyone with EU free movement rights prior to Brexit can apply to stay in the UK. Someone who did not have an EU free movement right cannot apply. Extended family members who had not applied for a residence document by 31 December 2020 fell into this category.
As highlighted on this blog back in February 2019, the 2016 Regulations acted as a gateway to the settled status scheme for durable partners and other extended family members. Unfortunately for Mr Batool, that gate permanently closed on 31 December 2020 and cannot now be re-opened.
Finally, the official headnote:
(1) An extended (aka other) family member whose entry and residence was not being facilitated by the United Kingdom before 11pm GMT on 31 December 2020 and who had not applied for facilitation of entry and residence before that time, cannot rely upon the Withdrawal Agreement or the immigration rules in order to succeed in an appeal under the Immigration (Citizens’ Rights Appeals) (EU Exit) Regulations 2020.
(2) Such a person has no right to have any application they have made for settlement as a family member treated as an application for facilitation and residence as an extended/other family member.