HC 2631 and the EU Settlement Scheme 

Statement of Changes to the Immigration Rules HC 2631, presented to Parliament on 9 September 2019, makes a raft of changes and it makes revised provision for access to the EU Settlement Scheme (or the “EUSS”) until 29 March 2022 whereby the scheme will be accessible in both “deal” and “no-deal” scenarios, for existing close family members (where the relationship existed on exit day) of UK nationals returning with them from the EEA or Switzerland having lived there together while the UK national had exercised their free movement rights. Notably, the European Union (Withdrawal) (No.2) Act 2019 which requires the government to ask for an extension to article 50 if there is no deal by 19 October 2019. Notably, close family members are children and grandchildren (including those born overseas after exit day), spouses, civil partners, durable partners, and parents and grandparents, The changes allow access to the scheme until 31 December 2020, in both “deal” and “no-deal” scenarios, for future spouses, civil partners and durable partners (where the relationship was established after exit), and other dependent relatives, of UK nationals returning with them from the EEA or Switzerland having lived there together while the UK national exercised their free movement rights. HC 2631 clarifies how the scheme reflects the provisions of the Immigration (European Economic Area) Regulations 2016 covering this route under EU law and makes consequential changes following the inclusion of extended family members in that route under the regulations from 7 March 2019. 

The changes also clarify the definitions relating to relevant dual nationals, that is EEA citizens who were exercising Treaty rights in the UK and have naturalised as a British citizen, whose family members can apply under the scheme and this includes allowing their children aged under 21 to apply for settled status under the scheme (EUSS) on the basis that their parent would qualify for it if they could apply, which, as a British citizen, they cannot. Offshore working, by North Sea oil workers for example, will count as permitted absence from the UK with the effect that such work can be counted as UK residence towards an EUSS application. The changes confirm that a family member pegging their status on an EEA citizen who has “ceased activity” must have been resident in the UK as their family member at that point, consistent with Directive (2004/38/EC). Clarity is also provided to the requirements for evidence of family relationship. An EEA citizen applicant (like a non-EEA citizen applicant) without documented permanent residence status must provide relevant evidence about their EEA citizen family member, where they are relying on their relationship to that person (rather than on their own residence as an EEA citizen, e.g. where they became an EEA citizen during their residence in the UK).

 The changes under HC 2631 also require an applicant who relies on being the “dependent parent” of an EEA citizen to evidence that dependence where their child is under the age of 18. Moreover, they provide discretionary grounds for refusing applications under the EUSS, or for EUSS family permits or travel permits, where there has been a previous cancellation of EUSS leave or leave acquired having arrived in the UK with an entry clearance granted under Appendix EU (Family Permit), or a previous refusal of admission, and refusing the application is justified on the grounds of public policy, public security or public health. All this also applies where there are grounds that the decision would be conducive to the public good as a result of the person’s post-exit conduct in a “no deal” scenario or as a result of the person’s conduct after the end of the implementation period on 31 December 2020 in a “deal” scenario.

The Home Office says that the vast majority of EUSS applicants are genuine and so there is no real need for status granted under the EUSS to be cancelled at the border or curtailed in-country. But equally the Home Office considers it appropriate to protect the EUSS from abuse and thinks that its status should be covered by some of the same powers as other forms of immigration leave, so that due action can be taken where necessary. 

Hence, the changes amend Part 9 of the Immigration Rules to provide additional grounds for the cancellation and curtailment of EUSS status and leave acquired having travelled to the UK with an EUSS family permit, e.g. on grounds this was obtained by deception (such as where the holder had falsely claimed to be the family member of an EEA citizen). 

These changes also provide discretionary grounds for EUSS status and leave acquired having travelled to the UK with an EUSS family permit, to be cancelled at the border, in a “no-deal” scenario, on the basis that cancellation is conducive to the public good, as a result of the person’s post-exit conduct. 

Administrative review, the remedy for EUSS refusals, will be available in cases where status granted under EUSS is cancelled at the border because the person no longer meets the requirements for that status, e.g. where, as a non-EEA citizen granted pre-settled status under the EUSS, the holder has ceased to be the family member of an EEA citizen. Such cancellation could only occur where the person no longer satisfies any of the bases for eligibility for status under the EUSS. These changes took effect on 1 October 2019. 

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, Children, Citizens Directive, CJEU, European Union, EUSS, Immigration Rules and tagged , , , , , . Bookmark the permalink.

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