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‘Joining Family Members’ of EEA nationals under the EU Settlement Scheme

The Statement of Changes In Immigration Rules HC 813, published on 22 October 2020, sets out significant changes to the Immigration Rules. Included in these changes are provisions in Appendix EU which allow EEA or Swiss citizens resident in the UK prior to 31 December 2020 to be joined by their family members under Appendix EU.

Under the current Immigration Rules, family members of EEA nationals are eligible to apply for either Settled or Pre-Settled Status if they have been resident in the UK prior to 31 December 2020. However, under the new Rules, as set out in the Statement of Changes, they will be eligible to apply to join an EEA national in the UK, even if they have not previously resided in the UK prior to the end of the transition period. 

Who is a ‘joining family member’?

Family members who have not resided in the UK prior to 31 December 2020 will be able to make an application as a “joining family member of a relevant sponsor”.  In order to meet this definition, the family member will need to demonstrate that the relationship with the relevant EEA national commenced prior to 31 December 2020, except in the case of a child who was born or adopted after that date. The relationship needs to continue to exist at the date of application. This may apply to both EEA or third-country nationals who have not been resident in the UK by 31 December 2020 or were resident prior to this date but whose continuous residence was broken (for example through at least 6 months’ absence in a 12 month period). 

Who can they join in the UK?

The Applicant would need to demonstrate that their EEA national family member living in the UK (‘the Sponsor’ ) meets the definition of ‘relevant sponsor’. If the application is made after 31 December 2020 but prior to 01 July 2021, this would require the Sponsor to demonstrate that they had been resident in the UK prior to 31 December 2020 and have either been granted indefinite or limited leave to remain under the EU Settlement Scheme, or that they would have, if they had applied. If the application is on or after 01 July 2021, the Sponsor would need to demonstrate that they had been resident in the UK prior to 31 December 2020 and hold either indefinite or limited leave to remain under the Settlement Scheme (demonstrating that they would be eligible will no longer be sufficient).

Can the application be made from outside the UK?

An EEA national can make an application from either inside or outside of the UK for leave to enter or remain in the UK. If they are granted limited leave to enter, this will be valid for a period of 5 years, and after a period of 5 years’ residence they would be eligible to apply for indefinite leave to remain. It is important to note that it is not possible to make an application from inside the UK as a visitor. 

In order to make an application for leave to enter from outside of the UK, a non-EEA citizen will need to show that they hold a valid document (e.g. a residence card, permanent residence card or derivative residence card issued under the EEA Regulations). If they do not hold this document, a non-EEA national will need to apply for a Family Permit, which can be done under Appendix EU-FP. In order to apply for a Family Permit they will need to demonstrate their family relationship and that their EEA family member is resident in the UK or will be travelling to the UK with the applicant within 6 months after the date of application. If entry clearance is granted, they will need to make an application for limited or indefinite leave to remain in the UK after their entry to the UK.

What is the deadline for the application?

The usual deadline of 30 June 2021 for an EEA national who was resident in the UK prior to 31 December 2020 to make an application under the EU Settlement Scheme.

However, those who fall under the Surinder Singh provisions (family members of British citizens who have exercised Treaty rights in another member state) whose relationship began before 31 January 2020 will be subject to a deadline of 29 March 2022.

Further, a joining family member who enters the UK with a Family Permit will have three months after their arrival, if their arrival is after 01 April 2021, to make an application. A child born in the UK on or after 01 April 2021, or adopted on or after that date, will have three months to make an application.

In the case of someone who is exempt from immigration control, they will need to make the application within the period of 90 days beginning on the day when they ceased to be exempt from immigration control. Where the Applicant has limited leave to enter or remain granted under Appendix EU, under another part of the Immigration Rules or outside of the Immigration Rules, they will need to make an application before the expiry of this leave.

In all of the above cases, the Secretary of State may grant an application after the relevant deadline if they are satisfied that there are reasonable grounds for a person’s failure to meet the deadline and the application has been made within a reasonable period of time from the passing deadline. This leaves a broad discretion in the hands of a decision maker. Appendix EU confirms that paragraph 39E of the Immigration Rules, which specifies a 14 day time period for making an application following an applicant’s leave expiring (if there was a good reason for the deadline being missed), or 14 days to make an application in a number of other circumstances  (as outlined in our blog post here) does not apply to Appendix EU, leaving the assessment of what is ‘reasonable’ to be determined on a case by case basis. 

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