We have made a number of changes to our Toolkit page on EEA Nationals. Please take a look at the full page here, and share with others who might need it.
The European Economic Area (EEA) is an international agreement between EU countries, along with Lichtenstein, Iceland and Norway.
This short blog will highlight the changes which are incorporated into the updated Toolkit page.
European Union Settlement Scheme (EUSS)
The European Union Settlement Scheme (EUSS) is the process by which EEA Nationals living in the UK before the 31st December 2020 could apply to stay in the UK, and continue to exercise the same rights to work, study and access public services and benefits as they did before Brexit.
In December 2022 there was a legal case (which we covered here) in which the High Court ruled that the Home Office was applying the EUSS unlawfully. The court said that there was nothing in the Withdrawal Agreement that said it was necessary for someone with Pre-Settled Status to make a second application for permanent residence.
As a result of this legal challenge, the Home Office changed the law on how EUSS works.
A new bullet point has been added to paragraph EU4 of Appendix EU, stating:
‘The Secretary of State may extend [limited leave] regardless of whether the person has made a valid application under this Appendix for such an extension’
What this means is that for the estimated 2.1 million people with pre-settled status in the UK, from September 2023, their Pre-Settled Status will automatically be extended by 2 years before it expires. This means that people with Pre-Settled Status will not lose the rights they have under their Pre-Settled Status.
Holders of Pre-Settled Status should then automatically have permanent residence status once they have been living in the UK for 5 years. Read more about what this means here.
This means that people who had Pre-Settled Status and forgot to make a new application for Settled Status when they were eligible would not lose their rights, including residence rights. Therefore, we have added a new, very important section into this Toolkit page called: What happens if you had Pre-Settled Status, but forgot to make an application for Settled Status?
The Home Office has also said that in 2024, some eligible people with Pre-Settled Status will automatically be upgraded to Settled Status, and that will be reflected in your digital status. At this stage, it seems that this will only apply to those people who provided a National Insurance (NI) number in their original application.
For this reason, and to avoid problems with your status under EUSS, the advice is still to make an application for Settled Status if you are eligible.
For more information on how the Home Office has changed the law since this legal challenge, see this really helpful Q&A document from the3million.
Making a late application to EUSS
The deadline to apply to EUSS was 31 June 2021, but the scheme is still open to applications. There have now been changes to the reasonableness of the delay for a late application.
Now, if you are applying to EUSS late you must give clear and detailed information about the reasons for your late application. If the Home Office thinks that there are no reasonable grounds for delay in your application, your application will be rejected with no right of appeal or administrative review.
From August 2023 onwards, the Home Office will first consider your reasons for making a late application and then consider if the application itself is valid. For this reason, the advice is to get help if you are considering making a late application to EUSS.
Rules on joining family members
The Home Office has also changed the law on applications made by ‘joining family members’. This is a family member of an EU national who wasn’t in the UK on the basis before 31 December 2020. Now, an in-country application made after 9 August 2023 as a ‘joining family member’ will be rejected if the applicant is an ‘illegal entrant’ as under Section 33 of the Immigration Act 1971. This definition of ‘illegal entrant’ is for a person:
- unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, or
- entering or seeking to enter by means which include deception by another person
Surinder Singh and Zambrano Routes Removed
In a statement of changes to the Immigration Rules in July 2023, the government closed the Surinder Singh and Zambrano Carers Route. It has said that these ‘fall outside of the UK’s Withdrawal Agreement commitments’.
The Surinder Singh route was a route to the UK for people who had lived in an EEA member state with a British citizen before Brexit. It was named after a case in 1992 at the Court of Justice of the European Union (which is the court based in Luxembourg). It meant that spouses and dependents of a British citizen in the EU before Brexit could apply for leave to remain in the UK.
The Home Office closed the Surinder Singh route to new applicants on 8 August 2023.
This means that from 8 August 2023, British citizens who would like to return to the UK with family members will need to make applications under Appendix FM. Read more on our Toolkit page here.
The Home Office has also closed the EUSS to people applying as a ‘person with a Zambrano right to reside’, sometimes called a ‘derivative right to reside’. A Zambrano carer is a parent who had the sole care of a child with British citizenship, and is named after a case in the Court of Justice of the European Union.
The Zambrano route gave the person the right to apply to the EUSS to apply for Pre-Settled or Settled Status.
This change means that the Zambrano route closed to new applications on 8 August 2023, and the Home Office will reject any new applications made after this date.
The route will stay open in the following cases (as these are not considered to be new applications):
- If you have Pre-Settled Status on the Zambrano route and you would like to apply for settled status
- If you have already applied before 8 August and not yet received a decision
- If you have already applied before 8 August and are challenging a refusal by appeal or administrative review.
All these changes have been incorporated into our updated Toolkit page on EEA Nationals. Please have a look at the full page here, and share with others.
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