Who do the EEA Regulations 2016 still apply to (and for how long)?

By Alex Papasotiriou - Immigration Barrister

24 Feb 2021

Although Brexit took place on 31 January 2020, EU law (“direct EU legislation” and “EU-derived domestic legislation”) continued to apply in the UK for an 11-month period thereafter, known as the “transitional period”, which ended on 31 December 2020. Nonetheless, although now repealed, some aspects of EU law continue to apply to certain persons beyond that date.

Certain provisions of the EEA Regulations 2016 have been saved, albeit with certain modifications, by way of Statutory Instrument: the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. These Regulations came into force at 11pm on 31 December 2020.

Deadline to apply to the EU Settlement Scheme

Regulation 2 of this SI specifies the end of 30 June 2021 as the deadline by which an application to the EU Settlement Scheme must be made by EEA nationals and their family members. 

This refers to those already resident in the UK, as there will be a 3-month deadline upon entry for joining family members arriving on or after 1 April 2021. There are also separate deadlines for family members of qualifying British citizens and applicants whose leave will expire or who will cease to be exempt from immigration control on or after 1 July 2021. Further, those with reasonable grounds for missing the deadline will be given a further opportunity to apply to the EU Settlement Scheme. These are reflected in Appendix EU to the Immigration Rules and not in the Regulations.

Saving of the EEA Regulations 2016 during the grace period

Importantly, regulation 3 specifies a “grace period”, during which certain provisions of the EEA Regulations 2016 continue to have effect, with certain modifications, in relation to a “relevant person”.

Grace period

The grace period is specified in regulation 3(5) as beginning immediately after 11pm on 31 December 2020 and ending on 30 June 2021.

Relevant person

However, the saved provisions of the EEA Regulations 2016 do not apply to everyone, but only to relevant persons. A “relevant person” is defined as either:

1. A person who: 
   1. was lawfully resident in the UK by virtue of the EEA Regulations 2016 or had a right of permanent residence under those regulations before 31 December 2020; AND
   2. who does not have (nor have had during the grace period) status under the EU Settlement Scheme; OR
2. A “relevant family member”, not falling under the above category themselves, of a person who, before 31 December 2020:
   1. was lawfully resident in the UK by virtue of the EEA Regulations 2016 or had a right of permanent residence under those Regulations; AND
   2. did not have status under the EU Settlement Scheme.

As such, it is important to note that the saved provisions do not have effect in relation to any person who has acquired any status under the EU Settlement Scheme before 31 December 2020, or their family members. 

Regulation 3(5) also provides that a person will be treated as residing in the UK whilst their continuity of residence is not broken within the meaning of regulation 3 of the EEA Regulations 2016. As such, a person who is absent from the UK for no more than six months will still be considered to be residing in the UK for the purposes of the definition of “relevant person”. 

Further, the same regulation provides that a person who had a right of permanent residence in the UK but has lost it due to an absence from the UK exceeding 2 years, will be treated as having a right of permanent residence if the absence has been for a continuous period of 5 years or less.

Relevant family member

Having considered the definition of “relevant person”, now it is important to consider who comes under the definition of “relevant family member”. But before that, we need to establish who comes under the definition of “family member”. 

A family member for these purposes is:

1. A (direct) family member as defined in regulation 7 of the EEA Regulations 2016; AND
2. An extended family member as defined in regulation 8 of the EEA Regulations 2016, BUT ONLY IF:
   1. they were a durable partner before 31 December 2020 and can prove that; OR
   2. they hold a valid EEA family permit (regardless of whether this was issued before or after 31 December 2020), residence card or registration certificate issued under the EEA Regulations 2016.

As such, other extended family members, such as dependent relatives of EEA nationals, would not come under the definition of “family members” unless they hold such a document. Further, as a dependent relative would require to hold such a document for the saved provisions to have effect in relation to them in the first place, unless they have applied  for an EEA family permit or residence card before 31 December 2020 and that is granted thereafter (but before 1 July 2021), they cannot obtain such a document after 31 December 2020.

A “relevant family member” is a family member who either:

1. Was a family member before 31 December 2020;
2. Becomes a family member after 31 December 2020 by virtue of being issued with an EEA family permit under the EEA Regulations 2016;
3. Is the child (born or adopted after 31 December 2020) of a relevant person and:
   1. the child’s other parent is a relevant person, or a British citizen, or has status under the EU settlement scheme; OR
   2. the relevant person has sole or joint rights of custody of the child; OR
   3. is the child of beneficiaries of the Swiss citizens’ rights agreement; OR
4. Is the spouse  or civil partner of a national of Switzerland.

Points to take from this: The saved provisions do not apply to all those who were considered family members or extended family members under the EEA Regulations 2016 when they were fully in force. For instance, those who can prove they were durable partners before 31 December 2020 can apply for a first EEA family permit after that date (provided also that the EEA national did not have pre-settled or settled status and they resided lawfully in the UK or had a right of permanent residence under the EEA Regulations 2016 before that date). However, such a family permit would not be valid after 30 June 2021.

Conversely, other extended family members, such as dependent relatives, cannot apply for a first EEA family permit after 31 December 2020. If they have applied before 31 December 2020, they can still be issued with such a document upon their application (or an appeal against its refusal) being successful, provided this takes place before 30 June 2021. Equally, there would be no jurisdiction to appeal against a refusal or rejection of an application made after 31 December 2020 by a dependent relative who does not hold an EEA family permit or residence card issued under the EEA Regulations 2016, as the saved provisions would not have effect in relation to such a person.

Saving of the EEA Regulations 2016 beyond the grace period

The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 provide for the saving of EEA Regulations 2016 beyond the grace period. This is specified in regulation 4, which provides that certain provisions of the EEA Regulations 2016 continue to have effect, with certain modifications, in relation to “the applicant” during the “relevant period”.

The applicant

Regulation 4 applies to a person who:

1. Has made a valid, in-time application under the EU Settlement Scheme that has not been withdrawn; AND 
2. Was lawfully resident or had a right of permanent residence in the UK under the EEA Regulations 2016 before 31 December 2020.

Regulations 4(6)(c)&(d) contain similar provisions as regulation 3(5) with regard to who will be treated as residing or as having the right of permanent residence in the UK.

The relevant period

The relevant period begins immediately after 30 June 2021 and ends when:

1. The applicant is granted status under the EU Settlement Scheme on the basis of the in-time application;
2. The deadline to appeal against the refusal to grant any status in response to the in-time application ends (ignoring any possibility of an appeal out of time with permission);
3. The appeal against the refusal to grant any status in response to the in-time application is finally determined, withdrawn or abandoned, or lapses.

Regulation 4(7) provides for when an appeal is finally determined and treated as abandoned akin to section 104 of the Nationality, Immigration and Asylum Act 2002.

Essentially, regulation 4 operates in a way that is similar to that of section 3C of the Immigration Act 1971, although the applicant here is required to have had a right of residence under the EEA Regulations 2016, rather than valid leave to enter or remain, before making an in-time application for leave (here only under the EU Settlement Scheme).

Saved provisions and burden of proof

Which provisions of the EEA Regulations 2016 are saved and with what modifications is specified in regulations 5 to 11. Regulation 12 specifies provisions of other legislation that continue to apply, with certain modifications, in conjunction with regulations 3 and 4.

Regulation 13 specifies that the onus is on the individual who asserts they are or were lawfully resident in the UK by virtue of the EEA Regulations 2016 to prove it for the purpose of the saving provisions having effect in relation to them.

Conclusion

It will be noted that the question as to whom the EEA Regulations 2016 apply, for how long, and to what extent is particularly complex and finding the answer is necessary to establish who can make an application for an EEA family permit, bring an appeal or rely on a right of residence beyond 31 December 2020. Consequently, careful consideration of a person’s individual circumstances and the wording of these Regulations is required on a case-by-case basis.

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