Policy Change for Extended Family Members of UK-based EU Citizens
As has been set out in previous articles, some extended family members of UK resident EU citizens may no longer make applications to remain in or join their family members in the UK under the EU Settlement Scheme.
However after 31 December 2020 there began to be problems with those who had made their applications before that date (the end of the withdrawal period); or those who had been unable to travel to the UK before 30 June 2021 (the end of the ‘grace period’) on their previously issued family permits. Their applications to remain in or come to the UK were refused on the basis that their family circumstances or their family permits were no longer valid because the Regulations or the transitional arrangements relating to their status had expired.
Recent Changes to Home Office Policy Affecting Extended Family Members
New guidance issued by the Home Office on 1 November 2021 seeks to deal with these further difficulties for extended family members whose relationships were recognised before 31 December 2020, but because of circumstances beyond their control, were unable to obtain permission to remain in the UK, or to join their family members in the UK before 30 June 2021.
What Is an Extended Family Member?
Before 31 December 2020
Under the previous regime affecting EU nationals and their families [The Immigration (EEA) Regulations 2016], an ‘extended family member’ is defined (in Regulation 8) as follows:-
- a relative of an EEA national who is residing in a country other than the UK and is dependent on the EEA national
- is a member of their household and either:
- is accompanying the EEA national to the UK or wishes to join them
- has joined them in the UK and continues to be dependent on them or to be a member of their household
- a relative of an EEA national who strictly requires the personal care of the EEA national due to serious health grounds
- a relative of an EEA national who would meet the requirements of the Immigration Rules for indefinite leave to remain (other than those relating to entry clearance) as a dependent relative of an EEA national as if the EEA national was a person present and settled in the UK
- the partner (other than a civil partner) of an EEA national who can prove they are in a durable relationship with the EEA national
The definition of a ‘relative’ is given in the guidance relating to extended family members under the 2016 Regulations, as follows:-
The term ‘relative’ includes:
- brothers
- sisters
- aunts
- uncles
- cousins
- nieces
- nephews
This list is not complete. You can also include those related by marriage to the EEA national and further generations of the above relatives such as great-aunts, great-nephews and second cousins. Since 11 February 2016 an applicant related by marriage to the spouse of an EEA national who has not previously been issued with documentation under the regulations is not considered an extended family member.
After 31 December 2020?
It is important to understand who is an extended family member after 31 December 2020 because some of these family members became unable to make applications under the EU Settlement Scheme to join or remain with their EU national family members in the UK.
The following should be noted:-
Firstly, spouses and parents and children of EU nationals (and their spouses) are not ‘extended’ family members, they are considered to be family members or direct family members. They are able to make applications under the EU Settlement Scheme provided the relationships were established before 31 December 2020 as ‘joining family members’. Note further that applications can be made for children born or adopted after 31 December 2020; here is a link to a previous article about ‘joining family members’.
Secondly, there is a further distinction between spouses, minor children and the other ‘direct’ family members, i.e. those who are adult children, parents and grandparents. They are different because the element of whether they are dependent on their EU sponsors becomes an issue. This was a requirement under the previous Regulations; and is presently a requirement under the EU Settlement Scheme; they must be and are categorised as dependent family members. However, until 30 June 2021, dependency was assumed for applications for family permits made by a dependent parent. Here is a link to a previous article which discusses these applications under the EU Settlement Scheme.
Thirdly, applications for family permits for durable/unmarried partners are dealt with separately under the EU Settlement Scheme; there is a requirement to show that the unmarried partners (called ‘durable’ partners under the previous Regulations) had been cohabiting for two years or more before 31 December 2020. In the guidance relating to the previous (before 31 December 2020) Regulations this two year cohabitation requirement was also referred to, but under European law this was not a particular requirement so long as it could be shown that the partnership was durable through circumstances such as raising a child together. Here is a link to a previous article which discusses applications from unmarried partners under the EU Settlement Scheme.
Finally, for certain extended family members, i.e. the relatives who are defined above, there is no application which can be made under the EU Settlement Scheme for these family members to join or remain with their family members in the UK, unless they have established their dependencies and/or connections before 31 December 2020. This category of extended family members is also referred to as ‘dependent relatives’, but should be distinguished from dependent adult children, parents or grandparents (see above).
Problems Which Developed After 31 December 2020 for Extended Family Members/Dependent Relatives
There were a number of factors which led to problems for dependent relatives. Some who had made their applications under the previous Regulations before 31 December 2020 were subject to delays in decision-making, and when their applications came to be decided, they received refusals which said that they could no longer rely on the previous Regulations to remain in the UK because the Regulations had expired. Because there is no route for dependent relatives (not adult children, parents or grandparents – see above) to make fresh applications under the EU Settlement Scheme, they were now effectively precluded from making applications to remain or join their EU family members in the UK.
Others were affected because had received EEA family permits under the previous Regulations to travel to the UK, but because of the pandemic and other difficulties, they were unable to travel to the UK before 30 June 2021, and it was therefore considered that their permits had expired with the end of the Withdrawal Period (31 December 2020) and the end of the ‘grace period’ (30 June 2021). Again this proved to be a problem for those who were unable to make fresh applications for a family permit under the EU Settlement Scheme.
Changes to Policy Announced to Take Effect From 1 November 2021
The Home Office was addressed about the unfairness which had arisen for these dependent relatives from many quarters, including the European Commission itself. It was stated that the Withdrawal Agreement was drafted to protect the relationships and rights that had been established and had been in place before 31 December 2020, and therefore the UK was in breach of the agreement in failing to recognise those that had properly made their applications relying on the previous Regulations. The new guidance for its decision-makers, published on 1 November 2021, sought to address these concerns, stating the following:-
Changes have been made in particular to reflect changes to Appendix EU (Family Permit) made in Statement of Changes in Immigration Rules: HC 617, laid on 10 September 2021. Changes also include a temporary concession outside Appendix EU (Family Permit) to bring in scope of the EUSS family permit some extended family members (other than durable partners), some applicants relying on certain derivative rights and some persons issued with an EEA family permit who were unable to travel to the UK by 30 June 2021.
The changes to policy are set out at page 11 of the guidance, as follows. Note the reference to compliance with the Withdrawal Agreement, and also that further information or evidence should be sought if there are questions about eligibility before refusal:-
Arrangements after 30 June 2021
Consistent with Article 10(3) of the Withdrawal Agreement and equivalent provision in the other citizens’ rights agreements, the Home Office is required to continue to make decisions on valid EEA family permit applications from extended family members (other than durable partners) made by 31 December 2020, and from direct family members (as defined in regulation 7 of the EEA Regulations) and durable partners made by 30 June 2021. Subject to the guidance in this section, we are obliged to issue a product to all those whose EEA family permit application was successful, including on appeal, even though the route closed on 30 June 2021.
There is no Withdrawal Agreement requirement to facilitate entry for those relying on certain derivative rights (Chen, Ibrahim and Teixeira or Zambrano) who applied for, but were not issued with, an EEA family permit before the end of the transition period.However, the Home Office has decided as a matter of domestic policy to treat this cohort the same as non-durable partner extended family members.
You must therefore consider any pending valid EEA family permit application from a direct family member or durable partner against the EUSS family permit requirements as well as the EEA family permit requirements. This also applies where an appeal has been lodged, and not yet concluded, or where an appeal has been allowed, against a decision to refuse an EEA family permit.
If you need further information or evidence to determine whether the applicant is eligible for an EUSS family permit, you must seek to contact them and request this from them before making your decision.
Where, save for the required application process and subject to the relevant suitability checks and to any material change in circumstances (for example, where the sponsor has died since the EEA family route closed on 30 June 2021), the applicant meets the requirements for an EUSS family permit, as set out in Appendix EU (Family Permit) and this guidance, you must issue an EUSS family permit.
In addition, as a temporary concession outside Appendix EU (Family Permit), this approach will incorporate:
- EEA family permit applications from extended family members (other than durable partners), and those relying on derivative rights, made by 31 December 2020 (and where the sponsor was resident in the UK by that date) who would have qualified for an EEA family permit (including following an allowed appeal) had the route not closed
- cases where an EEA family permit with an expiry date of 30 June 2021 was issued on or after 1 June 2021 and the applicant has contacted the Home Office to advise that they were not able to travel to the UK by 30 June 2021
- cases where an EEA family permit was issued before 1 June 2021, the applicant has contacted the Home Office to advise that they were unable to travel to the UK by 30 June 2021 and there were compelling practical or compassionate reasons (for example, ill health or pregnancy) or COVID-19 related reasons (for example, their country of residence was red listed at the time) why the applicant was not able to travel to the UK by 30 June 2021
If you need further information or evidence to determine whether the applicant is eligible for an EUSS family permit on this basis, you must seek to contact them and request this from them before making your decision.
Where, subject to the relevant suitability checks and to any material change in circumstances (for example, where the sponsor has died since the EEA family route closed on 30 June 2021), the applicant meets the above requirements, you must issue an EUSS family permit.
Entry clearance in the form of an EUSS family permit will be granted for the relevant period, which will be a period of 6 months from the date of decision. The EUSS family permit will be issued on a Category D vignette with the endorsement:
- EU SETTLEMENT SCHEME FAMILY PERMIT to join / to acc + name of the EEA national
No conditions are to be placed on the permit.
The above guidance on the temporary concession is intended to be an interim measure until Appendix EU (Family Permit) to the Immigration Rules can be amended by a Statement of Changes in Immigration Rules to reflect the approach set out here.
Those issued with an EUSS family permit under these arrangements will be able to rely on this as the ‘relevant document’ required under Appendix EU in any subsequent application to the EUSS.
Further policy changes may also be announced, as well as changes to the Immigration Rules (Appendix EU) to address these and perhaps other difficulties experienced by EU nationals and their family members during the transitional period post 31 December 2020.
Finally, in a recent related case determined by the Tribunal, Geci (EEA Regs: transitional provisions; appeal rights) [2021] UKUT 285 (IAC), Upper Tribunal Judge Rintoul has reiterated that appeals brought against decisions made before the end of the Withdrawal Period (i.e 31 December 2020) which affected the residence rights of family members of EEA nationals prior to that date must be determined under the 2016 Regulations, as per Schedule 3 of the Withdrawal Act. Schedule 3 further goes on to provide (at Paragraph 4) that decisions pending in respect of applications made under the Regulations must be determined under the laws pursuant to the Regulations (i.e. not under Appendix EU which governs the EU Settlement Scheme).
Contact our Immigration Barristers
For expert advice and assistance in relation to an application under the EU Settlement Scheme, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
