Brexit and Appendix EU: Changes to the Immigration Rules

In his recent opinion in R O (C‑327/18 PPU, EU:C:2018:644), Advocate General Szpunar lamented that “we know that we know next to nothing about the future legal relationship between the EU and the United Kingdom of Great Britain and Northern Ireland”. But one thing that we do know is that Statement of changes to the Immigration Rules: CM 9675 (20 July 2018) ensures that Appendix EU to the Immigration Rules will come into force on 28 August 2018 for the purposes of an initial test phase of the EU Settlement Scheme which will be rolled out on a phased basis from late 2018 and will be fully open by 30 March 2019. The scheme aims to implement a simple three-step process that tests the core criteria of identity, eligibility and suitability and these criteria serve the purpose of measuring the merits of individual applications. However, problematically, the scheme will confer immigration status in digital form and this is likely to result in the victimisation of EU nationals and their families because of the right to rent checks and the ability to prove one’s right to work in the UK. In that regard the House of Commons Exiting the European Union Committee has made it clear in The progress of the UK’s negotiations on EU withdrawal: the rights of UK and EU citizens (Eighth Report of Session 2017–19) that “documents, such as endorsed passports or biometric cards, are understood as forms of identification and are likely to be the default document requested by a landlord or employer.”

Without such documents, employers and landlords will readily ostracise and exclude EU citizens from renting property and working and they will suffer because of the hostile environment policy which cannot so easily be turned off or reset by pressing a button or flicking a switch. So understandably the three million EU citizens in the UK want a hard document to be issued rather than a digital code. The Home Office insists the digital code system will be less resource intensive, reduce fraud and be simple to use. However, MPs are concerned that the Home Office is introducing a new system on a large scale and relies upon employers and landlords to be open to understanding and embracing a new way of working. Employers and landlords will want to avoid the consequences of breaching the law and therefore the Brexit Committee has called on the government to issue a physical document to EU citizens. The Immigration and Nationality (Fees) (Amendment) (EU Exit) Regulations 2018 will specify fees for applications under Appendix EU and provide for exceptions in respect of those fees. Applications will cost £65 and costs for children under 16 will be £32.5. Biometric data will be enrolled within the meaning of the Immigration (Provision of Physical Data) (Amendment) (EU Exit) Regulations 2018.

Barriers to Applications

Existing holders of valid permanent residence will be able to swap for settled status free of charge. People considered to be “resident in the UK” will include those present in the UK before midnight on 31 December 2020.

However, the Migration Observatory identifies certain barriers to applications under the scheme in its report Unsettled Status? Which EU Citizens are at Risk of Failing to Secure their Rights after Brexit? Significantly, there are several categories such as children whose parents do not themselves apply, do not realise that children need to apply, or mistakenly believe that their UK-born children are automatically UK citizens.

Others categories include very long-term residents, people who have already applied for permanent residence and people who believe they are ineligible, such as people who have previously been refused permanent residence or those with minor criminal convictions or cautions. Indeed, the scheme involves proof of identity, checks for serious criminality and evidence of residence in the UK.

Special Interest to Parliament

The changes to the rules under CM 9675 mean that Appendix EU will govern the basis on which resident EU citizens and their family members, and the family members of certain British citizens, can apply for leave to remain in the UK under UK immigration law.

Where resident EU citizens and their family members are concerned, this is in line with the draft Withdrawal Agreement with the EU and will not affect their existing rights derived from EU law.

EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for “settled status”, enabling them to stay permanently because indefinite leave to remain (ILR) will be conferred on them. Those with less than five years residence will be eligible for pre-settled status or “limited leave to remain for five years”.

CM 9675 explains that those eligible under the scheme will be able to apply on a voluntary basis for the UK immigration status which they will require to remain in the UK beyond the end of the planned post-exit implementation period on 31 December 2020. It is said that this is consistent with articles 17 and 17a of the draft Withdrawal Agreement in relation to EU citizens and their family members, On the present state of the law, under section 7(1) of the Immigration Act 1988, an individual who is entitled to remain in the UK under EU law is not required to have leave to remain. Appendix EU will enable individuals to apply for leave to remain. However, any leave granted under Appendix EU shall have no effect on existing rights under EU law.

The Changes in Summary

EU citizens who have been continuously resident in the UK for five years will be eligible for “settled status” or ILR. EU citizens and their family members who arrive by 31 December 2020, but will not by then have been continuously resident in the UK for five years, will generally be eligible for “pre-settled status” or five years’ limited leave to remain in the UK, enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status.

Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will be able to join an EU citizen resident in the UK after 31 December 2020, where the relationship existed on that date and continues to exist when the person wishes to come to the UK. Provision for future children will be made, in line with the Withdrawal Agreement.

The government has decided, as a matter of domestic policy, that a family member of a British citizen who is lawfully resident in the UK by 31 December 2020 by virtue of regulation 9 of the Immigration (European Economic Area) Regulations 2016 will be eligible to apply for status under the EU Settlement Scheme contained in Appendix EU.

The requirements in Appendix EU are in accordance with the conditions agreed under the Withdrawal Agreement. The exception is where the UK is applying more favourable criteria: for example, in deciding that the main eligibility requirement for status to be granted under the scheme will be residence in the UK, generally in line with current free movement rules on the continuity of that residence. According to the Home Office, there will not be any further discretion to refuse a valid application made under the scheme beyond the conditions agreed under the Withdrawal Agreement. Administrative burdens will be minimised by not requiring more information than is necessary to determine whether the requirements set out in Appendix EU have been met.

Appendix EU essentially provides a self-contained set of Immigration Rules for the purposes of the EU Settlement Scheme. The following points are notable:

Paragraphs EU2 to EU8 set out the overall requirements for indefinite leave to remain or five years’ limited leave to remain to be granted under it, and the procedure for granting that leave.

Paragraph EU9 sets out the requirements for making a valid application under Appendix EU.

Paragraph EU11 sets out the eligibility requirements for ILR (“settled status”) for EU citizens and their family members, and paragraph EU12 does so for the family members of certain British citizens.

Paragraph EU14 sets out the eligibility requirements for five years’ limited leave to remain (“pre-settled status”).

Paragraphs EU15 and EU16 set out the basis on which an application under Appendix EU will or may be refused on grounds of serious criminality, other public policy considerations or deception, as reflected in the draft text of the Withdrawal Agreement.

The draft Withdrawal Agreement with the EU does not cover the citizens of the non-EU European Economic Area states (Iceland, Liechtenstein and Norway) and Switzerland. However, the government is eager to strike a similar deal for such citizens living in the UK, and for UK nationals living in those states.

We are informed that talks with all four states are progressing and if agreement is reached the UK intends that the settlement scheme set out in Appendix EU will, through a further Statement of Changes in Immigration Rules, be made available to other EEA citizens and Swiss citizens (and their family members) on a similar basis as for EU citizens.

Importantly, Irish citizens enjoy a right of residence in the UK that is not reliant on the UK’s membership of the EU. They will not be required to apply for status under Appendix EU (but may do so if they wish), and their eligible family members (who are not Irish citizens or British citizens) will be able to obtain status under it on their own account, without the Irish citizen doing so.

Zambrano Carers?

Notably, Appendix EU provides coverage those with rights under the judgment in Chen (C-200/02, EU:C:2004:639), Teixeira (C-480/08, EU:C:2010:83) and also Ibrahim (C-310/08, EU:C:2010:80). A Chen carer is a primary carer of a self-sufficient EU citizen child or children in the UK. An Ibrahim and Teixeira child is a child of a former EU citizen worker and is in education in the UK, and an Ibrahim and Teixeira carer is the primary carer of such a child.

But a question mark hangs over the important judgment in Ruiz Zambrano (C-34/09, EU:C:2011:124) which gave rise to the articulation of the “substance of rights” test and produced the concept of a Zambrano carer. Although the Home Office says it will provide further details in due course on the status of Zambrano carers, there are serious concerns about this vulnerable cohort of people whose future hangs in the balance. The actual number of Zambrano carers in the UK is unknown and they have been excluded from the Withdrawal Agreement. If the rights of Zambrano carers are not fully addressed in advance then this can only mean that many British citizen children will be banished from their own country.

Comment

The Brexit Committee has said that citizens’ rights must be ringfenced in the event of a no deal Brexit. It welcomed positive statements from ministers that they would honour their commitments to the EU in the UK in a no deal situation but found that “more could be done to provide reassurances as to how this would be put into legal effect.”

The Windrush generation’s mistreatment has heightened the Brexit Committee’s concern that conferring immigration in digital form will be insufficient. The Windrush episode leaves no doubt that official errors and hard policies produced extremely devastating consequences for individuals and their families who were perfectly entitled to remain in the UK but could not “prove” their status. The Brexit Committee is thus concerned about the potential for fraud and the incentive for individuals to be exploited if they cannot persuade an employer or landlord of their status.

Since the Withdrawal Agreement has not yet been finalised, a no deal scenario would create uncertainty around establishing the right to reside and work and the right to return after a period of absence. Protections such as the right to refer cases to the CJEU for eight years would also be lost.

Overall, the Brexit Committee welcomed Sajid Javid’s clear commitment that EU citizens living lawfully in the UK will be able to stay if there is no deal. It called on member states to make similar public commitments to assure all UK citizens living in EU countries that their rights will be safeguarded without a deal.

In The Future Relationship Between the United Kingdom and the European Union (CM9593) – or Theresa May’s Chequers plan of 12 July 2018 – the government stresses that the UK will leave the Single Market and the Customs Union, end free movement and the CJEU’s jurisdiction, leave the Common Agricultural Policy and the Common Fisheries Policy, and end paying money to the EU every year. Theresa May is adamant that “we will take back control of our money, laws, and borders, and begin a new exciting chapter in our nation’s history.” However, according to a new YouGov survey, 42 per cent of Britons support having a second referendum on the terms of the Brexit deal compared to 40 per cent who would oppose it.

The UK relies heavily on EU workers to get the job done. Indeed, one out of 10 workers in London, Oxford and Cambridge come from the EU and in its With or Without EU? report the Centre for Cities is calling on the government to ensure that there is a minimum two-year implementation period in place whether the UK leaves the EU with a deal or not.

The report finds that EU citizens, whose concentration is mainly in the urban areas and predominantly in London, are a benefit to the UK economy and that they are younger, more qualified and more likely to be in work than the native population. According to the Brexit Secretary Dominic Raab, who once advocated that the UK should leave the ECHR, the UK will “move swiftly” to safeguard the future of EU citizens if there is no deal. Raab thinks that the UK owes a “moral obligation” to EU citizens and commented that it was “inconceivable” they would be “turfed out”. However, net migration to the UK from EU countries has hit a low point because EU migrants are keen to avoid Brexit problems.

The Department for Exiting the European Union has today published a series of technical notices dealing with a no deal situation. These technical notices address wide-ranging themes such as applying for EU-funded programmes, civil nuclear and nuclear research, farming, importing and exporting, labelling products and making them safe, money and tax, regulating medicines and medical equipment, state aid, studying in the UK or EU and workplace rights. The technical notices fail to mention EU immigration issues.

However, Dominic Raab optimistically thinks that a good deal is “in sight”. He reassures us that a good deal is the government’s “top priority” and that the UK does not want or expect a no deal Brexit, but it is something for which “we must be ready” nevertheless.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appendix EU, Brexit, Citizens Directive, CJEU, Employment, European Union, Free Movement, Immigration Rules, Permanent Residence, Politics, Windrush and tagged , , , , , , . Bookmark the permalink.

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