Changes in the Immigration Rules: Key Features of HC170

Statement of changes to the Immigration Rules HC 170 amends the Immigration Rules to reflect changes required if the UK leaves the EU without a deal. The changes affect EU, other EEA and Swiss citizens, and their family members. In order to increase security and better protect the public, these changes will apply UK conduct and criminality thresholds to both the pre-exit and post-exit conduct of EEA citizens and also their family members moving to the UK after Brexit. These thresholds will also apply to the post-exit conduct of EEA citizens living here before Brexit, and their family members, and to the pre-exit as well as post-exit conduct of EU citizens living in the UK before Brexit, and their family members, where their conduct after exit day results in a sentence of imprisonment. The changes will also provide access to the EU Settlement Scheme (EUSS) for certain categories of family members joining an EEA citizen resident here before Brexit, with applications by such family members able to rely on residence in the UK which began after Brexit, and to reflect the deadline by when applications by such family members will need to be made. Further, the changes establish the European Temporary Leave to Remain Scheme (Euro TLR), for EEA citizens, and their close family members, moving to the UK after a no deal Brexit and before the start of the new points-based immigration system from January 2021, to enable them to obtain a UK immigration status so that they can continue living and working here for a temporary period after 2020.

HC 170 addresses changes required if the UK leaves the EU on 31 October 2019 without a deal because. Pursuant to the European Union (Withdrawal) (No.2) Act 2019, Johnson sent a letter to the EU Council and the EU granted the UK a Brexit flextension until 31 January 2020. The European Union (Withdrawal) Act 2018 (Exit Day)(Amendment) (No.3) Regulations 2019 have changed the exit date from 31 October 2019 to 31 January 2020. Under the Johnson government’s revised withdrawal agreement a no deal Brexit is still possible at a later date. The EUSS is set out in Appendix EU of the Immigration Rules. It lays down the basis for UK immigration status under which EEA citizens resident in the UK and their family members, and the family members of certain UK nationals, will be able to remain in the UK permanently after Brexit. The EUSS coincides with the revised draft Withdrawal Agreement with the European Union of 17 October 2019 in relation to those EU citizens resident in the UK before the end of the planned implementation period on 31 December 2020, and their family members. The EUSS is meant to be consistent with the citizens’ rights agreements with other EEA countries (Iceland, Liechtenstein and Norway) and with Switzerland.

The government moreover  laid before Parliament on 24 October 2019 the Immigration (Amendment) (EU Exit) Regulations 2019 (discussed here), which will come into force on exit day in a no deal scenario. In the event of a no deal Brexit, free movement on the present footing under EU law will cease when the UK departs from the EU. Notably, Parliament has provided that the free movement rules will remain in place under the European Union (Withdrawal) Act 2018 until Parliament passes primary legislation to repeal it.

Ahead of that if there is no deal the government will introduce some appropriate changes, reflecting the UK’s departure from the EU. The Immigration (Amendment) (EU Exit) Regulations 2019 make changes including the application of UK thresholds on conduct and criminality. HC170 brings about those changes in the applicable Immigration Rules to EEA citizens and their family members. Moreover, no deal changes will also need to be made to the EUSS, to enable applications to be made by certain categories of family members joining EEA citizens resident here before Brexit, and Immigration Rules changes are required to establish the Euro TLR Scheme, for EEA citizens, and their close family members, moving to the UK after a no deal Brexit and before the commencement of the new points-based immigration system from January 2021.

Criminality rules

The government says in a no deal situation it wants to better protect the public by applying UK conduct and criminality thresholds in considering the refusal of entry, deportation and exclusion of EEA citizens and their family members, and when giving consideration to the cancellation and curtailment of leave granted to EEA citizens and their family members. The criminality thresholds for the UK provide that such decisions may be made where this is conducive to the public good. In summary, the changes: 

  • Apply current UK conduct and criminality thresholds to EEA citizens and their family members moving to the UK after Brexit, and to Turkish workers, business persons and their family members whose applications for leave under the European Communities Association Agreement (ECAA) are decided after Brexit. This is reflected in changes to Part 9 of the Immigration Rules (general grounds for refusal), and in the suitability provisions for Euro TLR, set out in Part 2 of Appendix EU.
  • Apply those thresholds to the post-exit conduct of EU citizens living in the UK immediately before Brexit or who have EUSS leave, and their family members, and of Turkish workers, business persons and their family members granted leave under the ECAA before exit, and to their pre-exit conduct where their conduct after exit results in a sentence of imprisonment. This is reflected in changes to Part 9 of the Immigration Rules, and to the suitability provisions for the EUSS, set out in Part 1 of Appendix EU, and for the EUSS family permit, set out in Appendix EU (Family Permit). Otherwise, their pre-exit conduct will continue to be considered under the EU law public policy tests (in the case of EU citizens, Turkish workers and their family members), or applying UK criminality thresholds subject to the ECAA standstill provision (in the case of Turkish business persons and their family members).
  • Apply various provisions in Part 9 of the Immigration Rules in order to ensure that, for Turkish workers, business persons and their family members, applications for entry clearance or limited leave by virtue of the ECAA can be refused, and limited leave granted by virtue of the ECAA can be cancelled or curtailed, on the grounds of conduct committed after exit day, or before exit day where the relevant person has received a sentence of imprisonment based on post-exit conduct or did not have entry clearance or limited leave by virtue of the ECAA immediately before exit day. This reflects amendments made to the by the Nationality, Immigration and Asylum Regulations 2019 (S.1. 2019/745) and the Immigration (Amendment) (EU Exit) Regulations 2019.

In line with the citizens’ rights agreements reached with the other (non-EU) EEA countries (Iceland, Liechtenstein and Norway) and with Switzerland, the pre-exit conduct of citizens of those countries and their family members resident in the UK before Brexit will continue in all cases to be considered under the EU law public policy tests.

EU Settlement Scheme

The changes amend the Immigration Rules for the EUSS, contained in Part 1 of Appendix EU, in two main ways, for a no deal Brexit. First to reflect the fact that applications by certain categories of family members who, after Brexit, join EEA citizens resident here before Brexit will need to be able to rely on residence in the UK and Islands which began after Brexit. Second to reflect the policy published on 6 December 2018 (and updated on 28 March 2019) about the deadline by when applications by such family members will need to be made (i) by 29 March 2022, where the relationship existed before Brexit and continues to exist when the application is made, in the case of spouses, civil partners, durable partners, children, parents and grandparents, and of children born overseas after Brexit, and (ii) by 31 December 2020, where the relationship as a spouse, civil partner or durable partner was formed after Brexit and continues to exist when the application is made, or from other dependent relatives.

The deadline in a no deal scenario for applications by existing family members overseas at Brexit, who wish to rely on pre-exit residence in the UK in applying for status under the EUSS, will be 31 December 2020 (which will also be the deadline, in that scenario, for applications by those in the UK at Brexit), with scope in any case for a late application by a person with reasonable grounds for missing the deadline. Otherwise, they may be able to return to the UK by 29 March 2022 and apply then, based on post-exit residence, for status under the scheme. The changes also amend the Immigration Rules for the EUSS family permit, contained in Appendix EU (Family Permit), to reflect the fact that, after a no deal Brexit, there will need to be scope for relevant non-EEA national family members to apply for an EUSS family permit to join an EEA citizen here with EUSS status, where the relevant family relationship was formed after Brexit as well as where it was formed before.

Euro TLR Scheme

These changes introduce the Immigration Rules for the Euro TLR Scheme, in Part 2 of Appendix EU, which will become operative on a no deal Brexit. The scheme will enable EEA citizens, and their close family members, moving to the UK after a no deal Brexit and before the start of the new points-based immigration system from January 2021, to obtain a UK immigration status so that they can continue to work or study here as they do now, for a temporary period. It will provide EEA citizens who move to the UK after a no deal Brexit, and their employers, with greater certainty during that transitional period, and will ensure that they have a secure UK immigration status before the introduction of the new system. Some features of the Euro TLR scheme are:

  • Applications will be made within the UK, will be free of charge and will involve a simple online process and identity, security and criminality checks.
  • EEA citizens applying under the scheme by 31 December 2020 will, if their application is successful, be granted a period of 36 months’ limited leave to remain in the UK, running from the date the leave is granted.
  • Non-EEA national close family members (spouses, partners and children under the age of 18) who are in the UK lawfully (other than as a visitor) may, from 4 December 2019, apply for Euro TLR and, if their application is successful, they will be granted limited leave to remain for the remaining duration of the Euro TLR held by the relevant EEA citizen. From 1 January 2021, EEA citizen close family members will be able to apply for Euro TLR on that basis. 
  • Euro TLR will not be extendable. Euro TLR holders wishing to stay in the UK after their Euro TLR leave expires will need to make a further application and qualify under the new points-based immigration system. If they do, and this is in a route under the new system which leads to settlement (indefinite leave to remain) in the UK, their period of Euro TLR will count towards the qualifying residence period for settlement under that route.
  • Where an individual who holds Euro TLR does not meet the requisite criteria under the new points-based immigration system or otherwise have a right to remain in the UK, they will be expected to leave the UK when their Euro TLR expires. 
  • An applicant refused Euro TLR on the basis of an application made from 4 December 2019 will be able to apply under Appendix AR (EU) for an administrative review of that decision.

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, Crime, Deportation, European Union, EUSS, Families, Free Movement, Immigration Rules, Spouses, Turkey and tagged , , , , . Bookmark the permalink.

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