FAQs: EEA-related issues
Please note that the above questions and answers have been prepared from the emails, telephone calls and actual cases that we have dealt and have therefore not provided any names and addresses in order to keep client confidentiality.
Question:
Is there a requirement for durable partners to have cohabited in the UK before 2020 – or can the partnership/cohabitation have taken place entirely outside the UK?
Answer:
There is no requirement for durable partners to have cohabited in the UK. Whether a relationship was durable by 31 December 2020 is a question of fact based on the individual circumstances of the couple. There is no requirement to have lived together at all to be in a durable relationship e.g. cultural or religious reasons may mean a couple have lived apart despite being in a durable relationship.
However, if there has been no (or limited) cohabitation, or the cohabitation was outside the UK, then it will probably be necessary to provide a detailed explanation to the Home Office about the history of relationship and the couples’ choice in terms of where they have lived.
Question:
If durable partners hadn’t lived together for two years by 30 December 2020 but had children together after this date, would that demonstrate the relationship was durable by the specified date or would the children need to have been born prior to this date?
Answer:
It is not per se necessary for the children to be born before the end of the transition period to be relevant to showing the relationship was durable by this date. However, children born a considerable time after the end of the transition period may not provide much assistance in terms of demonstrating the situation on 31 December 2020 (however, as there is a requirement to show an ongoing durable relationship at the date of application or when moving from pre-settled to settled status, children born to the couple at any time would be relevant to showing this condition is met).
Question:
What happens if a durable partner whose relationship breaks down, with no retained rights, does nothing? Will their pre-settled status get extended?
Answer:
Is that currently the Home Office policy is to extend all pre-settled status automatically without any consideration as to whether the holder continues to qualify. This is unless there is an event that triggers a Home Office investigation, such as one party notifying the Home Office the relationship has ended. So in principle, durable partner relationships that have broken down will not impact the sponsored party getting an extension of pre-settled status, if the Home Office is unaware of the breakdown.
The issue will come if / when the Home Office investigates their situation to determine whether the person can be upgraded to settled status, as it is possible at this point the Home Office will move to curtail status on the grounds that they have not completed five years as a family member. However, a decision to remove status must be a proportionate and take all relevant factors into account.
Question:
Is requiring someone to leave the UK, break continuity of residence and then reapply as a joining family member a potential breach of the Withdrawal Agreement? After all, the purpose of the Withdrawal Agreement is to protect a pre-existing relationship established before 31 December 2020.
Answer:
In the context of durable partners, it does seem permissible to require them to leave the UK and break continuous residence to then reapply, as the Withdrawal Agreement follows the Free Movement Directive in terms of distinguishing between direct family members and extended family members (the latter covering durable partners).
Under the Free Movement Directive, extended family members must apply for facilitation of their residence under national legislation and the Withdrawal Agreement takes the same approach. The courts have found that applying to the EUSS instead of the EEA Regulations is not an application for facilitation under the Withdrawal Agreement and as such, the person can derive no Withdrawal Agreement protection. Therefore, a durable partner in this position is unable to argue a breach of the Withdrawal Agreement in terms of being required to leave the UK to make a joining family member application.
Question:
If a dependent parent has cancer and cannot take a flight back to her home country when she is on visitor visa, can she apply for a joining family member without leaving the UK?
Answer:
The EUSS does not prevent joining family members applying if they are in the UK under the visiting rules. However, as discussed during the training session, the applicant would have to satisfy the EUSS deadline which is now taken as three months from the first date the joining family member has entered the UK from 1 January 2021.
If the application date is after three months the joining family member must provide reasonable grounds in the application for it to be valid. Serious medical grounds, such as in this case, could meet the reasonable grounds test for not applying within three months of the first visit.
Question:
If a joining family member is applying while in the UK as a visitor, is there a risk of being accused of illegal entry – an enforcement case?
Answer:
The Home Office does not consider applying to the EUSS whilst in the UK with visiting permission to fall under the definition of a specified enforcement case.
Question:
Does a certificate of application give you recourse to public funds?
Answer:
A certificate of application does not prevent a person from receiving public funds, if the holder meets the underlying eligibility criteria for the benefit.
Question:
The three month deadline for joining family members to apply, does this apply to someone who is applying for an EUSS family permit?
Answer:
No, there is no deadline for joining family members to apply for EUSS Family Permit (which will be made outside the UK). If the EUSS Family Permit is successfully obtained, the person has until the expiry date of the permit to apply for pre-settled or settled status after they have entered the UK.
Question:
Can a joining family member sponsor their partner under any route to join them in the UK, if he/she married in 2023?
Answer:
Joining family members can only sponsor family members under Appendix FM/Appendix Adult Dependent Relative/other immigration rules once they have obtained settled status/ILR. Though note, not all EUSS family relationships have an equivalent under other parts of the rules and so a joining family member being granted ILR will not open up family sponsorship completely.
Question:
Can someone with settled status apply for their joining family member at any time, so long as their relationship existed by 31 December 2020?
Answer:
Yes, as long as the family relationship is an eligible one (e.g. spouse, civil partner etc) and existed by 31 December 2020 then it is covered by the EUSS. Children born after 31 December 2020 are also covered. Note the answers in questions 5 and 8 in terms of how deadlines under the EUSS operate for joining family members.
Question:
Can a non-EEA permanent residence holder (under the EEA Regs) apply to the EUSS and use ID app from outside UK, or must they be here to apply?
Answer:
The Appendix EU rules allow for a non-EEA applicant to use the ID App and apply from outside the UK if they have a valid biometric residence card (BRC). It is likely that most BRCs issued under the EEA Regulations have now expired, but it is possible that there could be some valid BRCs still in circulation which could be used with the scanning app (valid in the sense that the expiry date has not passed, not valid in the sense that legal rights attached to the BRC continue as these ceased on 01 July 2021). If an applicant is outside the UK and cannot use the ID App, in most cases they will need to apply for an EUSS Family Permit and then apply to the EUSS once in the UK.
Question:
What happens to an EU citizen who was resident in the UK before 31 December 2020 but never applied to the EUSS?
Answer:
EU citizens living in the UK before the end of the transition period need to hold an immigration status to remain lawfully resident in the UK. Some EU citizens may hold valid ILR not issued under the EUSS, which means they do not need to apply to the EUSS (though they can if they want and probably should do as a) settled status is a better form of ILR then they already hold b) if their ILR is a physical ‘legacy’ document, then it may be preferrable or necessary to hold an eVisa to prove rights).
Question:
I know of some EU nationals who were granted pre-settled status whilst out of UK and did not enter UK until after 31 December 2020. They’ve since applied for an EUSS family permit for their spouse (marriage pre 31 December 2020) but the application has been refused because the EU national sponsor does not have proof of residence pre 31 December 2020. What do we do in these circumstances?
Answer:
If an EU citizen has been granted pre-settled status without being resident in the UK by 31 December 2020 (and not as a joining family member), then the likelihood is they are not entitled to hold that status (as they do not meet the fundamental condition of the Withdrawal Agreement to be resident by the end of the transition period).
The definition of a relevant sponsor in Appendix EU requires the EU sponsor (who holds pre-settled or settled status) to have begun a continuous qualifying period in the UK before the end of the transition period. Therefore, if the sponsor cannot meet this condition the joining family member application cannot succeed. In time the Home Office may seek to curtail the status of the EU citizen on the grounds they never met the conditions of the EUSS.
Question:
Can the children of durable partners apply as joining family members?
Answer:
If the child is not related to the EU sponsor then they cannot be sponsored as a joining family member if the couple are not married or in a civil partnership.
Question:
The Home Office has granted entry clearance under Appendix FM on the partner route to some spouses of joining family members and of late has been refusing. Is there a way out? Understand one needs to get settled status, but how can HO justify the previous grants?
Answer:
This to mean there was an incorrect decision to grant Appendix FM entry clearance based on a joining family member sponsor who is not settled, and when the spouse has attempted to apply for leave to remain under Appendix FM they have been refused (as the joining family member sponsor is still not settled). If this is the scenario it is likely to be necessary to appeal against the refusal and argue that given the Home Office incorrectly granted entry clearance, it would be disproportionate under Article 8 to refuse to extend leave to remain
Question:
A refusal of a joining family member application stated that the Home Office was not satisfied that funds provided by sponsor were the applicant’s only or main source of funds. Surely this can’t be right as the rules state that the applicant cannot meet their essential living costs in whole or in part? Can this be challenged?
Answer:
Dependency is a factual assessment and therefore, if the Home Office refuses an application on the grounds that they do not consider dependency to be established, it is likely to necessitate an appeal to the Tribunal as the immigration judge will be able to assess all the evidence and facts. The more unreasonable the Home Office refusal points on dependency the stronger the case. If there is evidence of dependency that was not submitted with the application, it may be preferrable to submit a fresh application than appeal the refusal (though the Home Office could refuse again which would then need an appeal).
It appears that the Home Office in this refusal is saying that there are other funds available to the applicant, which means that they do not require financial support from their sponsor to meet their essential needs. This may be a legitimate position to take depending on what funds are available to the applicant other than the financial support being provided by the sponsor. This emphasises the importance of detailed representations and evidence in EUSS applications that require dependency to be established.
Question:
What is the best route to apply for a mother of two Romanian children who are settled and now British, who needs to apply for residency to look after her husband (Romanian, with severe health diagnosis and with settled status himself). She is in UK but she is past the three months mentioned as cut off after 8 October 2024.
Answer:
It is not clear who is acting as the EU sponsor in this situation the children or the husband. If it is the children they a) must be Lounes / Qualifying British Citizen dual nationals b) the mother must be dependent on one or both of them. On the point of applying after being present in the UK for more than three months (noting that since 8 October 2024 this is calculated from the first entry to the UK from 1 January 2021), the joining family member applicant will need to provide reasonable grounds for making a late application.
It may be in this case the intention was to leave the UK after visiting (the implication is the mother entered as a visitor), but this was not possible due to the deterioration of the husband’s health. If this is the case, then a late EUSS application made in the UK would appear to meet the reasonable grounds test as set out in the Home Office guidance.
Question:
A settled Romanian couple, with a British child, leave for Romania and another child is born to this family. The mother is self-employed in Britain but the child was refused British citizenship. Could the child apply for status under the EU Settlement Scheme?
Answer:
If the mother (or father) of the child holds settled status based on being resident in the UK by 31 December 2020, then the child born outside the UK could apply to be granted settled status as a joining family member. If the child is Romanian and has a biometric passport or national ID card they can use the Home Office scanning app to apply directly to the EUSS.
Question:
The new five year rule on absence from the UK before pre-settled status lapses, is it retrospective? If someone was outside of the UK for over two years before the five year rule came in, did they lose their pre-settled status?
Answer:
The Home Office does not consider that the five-year allowance for pre-settled status holders before leave lapses to have retrospective effect This means that where a two-year absence occurred before 21 May 2024, the Home Office treats the pre-settled status to have lapsed.
One situation where this cannot apply is where the pre-settled status holder has already acquired a right of permanent residence under the Withdrawal Agreement before they had a two year absence, as they then have an allowance of five years before their permanent residence would be lost. The direct effect of the Withdrawal Agreement means that the pre-settled status cannot have lapsed under the domestic Order, as this would be incompatible with the Withdrawal Agreement.
There may be a question as to whether the lapsing leave legislation is compatible with the Withdrawal Agreement, in the context of removing residence status without giving the status holder the decision that their status has been taken away.
Question:
I saw Government announcements about the increased minimum income needed to sponsor a family member. I have (pre-)settled status, does this apply to me?
Answer:
If you are able to sponsor a family member under the EU Settlement Scheme, then you are not likely to be affected by the ‘minimum income requirement’ (MIR).
If however, you are sponsoring someone outside the EU Settlement Scheme, using British immigration rules instead, then the MIR will apply to you.
Question:
I am a citizen of China and married to a citizen of Argentina, who is 20 years old. My wife decided to move to the UK according to European rules based on the fact that she is a dependent child of her father, who has Spanish citizenship, already resides in the UK and has a Pre-Settled status in the country.
She was successfully granted a Pre-Settled status on this basis. Now I also want to relocate to the UK. How can I do so based on my spouse who already has immigration status in the UK?
Answer:
Your spouse, being a citizen of Argentina and being under the age of 21, can truly apply for immigration status as a dependent child from her father, who is a citizen of the European Union, already lives in the UK and has a Pre-Settled status.
However, according to the current immigration rules, you, as her spouse, unfortunately will not be able to apply for a spouse visa on the basis of your wife.
The reason being is that according to European rules, you can apply for a spouse visa only if your wife is a citizen of the European Union and is not dependent on anyone, but in your case, your wife only has Argentinian citizenship and plus she submitted a dependent child application on the basis of her father.
You will also not be able to apply for a spouse visa under the British immigration rules, since for this to happen your wife must not only have a Pre-Settled status, but also have the citizenship of an EU country, where Argentina does not belong.
In this case, you will be able to relocate to the UK on the basis of a student visa, work or business visa, but without reference to your wife and her immigration status.
You can also come to the UK temporarily on a visitor visa based on an invitation from your spouse and her father.
Question:
I entered the UK on a visitor visa in Sept. 2018 and did not go back. From June 2020, I have been residing with my boyfriend, who is a Lithuanian national and is working in the UK on a self-employed basis. I am also 7 months pregnant. I would like to know whether I have got any chances of regularizing my stay in the UK?
Answer:
You can make an application for an EEA Pre-Settled Status as the unmarried partner of an EEA national exercising treaty rights in the UK. You need to show you are in a ‘durable relationship’ and that your relationship has begun on or before 31 December 2021, and you will need to prove that you have been actually residing with your partner by providing documentary evidence of living together such as bills, bank statements, NHS letters or other documents in your name or your boyfriend's name at the same address (ideally for at least two years). Your boyfriend also needs to have or apply for a Pre-Settled Status himself, and he also needs to provide documents confirming his self-employment status. You should provide letters / medical records in respect of yourself confirming your inability to make travel arrangements (due to pregnancy) to seek the family permit from outside the UK. This type of application will take a long time to be processed and can be complex, so it would be wise to seek professional help.
Question:
I recently married a German national who is working in the UK and would like to invite my children (from a previous marriage) of ages 19 and 20 who are residing in Russian Federation. Can I do that?
Answer:
Yes. You can invite your children on an EEA Family Permit (6 month validity visa) that can be switched to a five-year EEA Pre-Settled Status from inside the UK. On completion of five years’ residence, they can apply for an EEA Settlement Status in the UK. Under the EU Settlement Scheme, children up to the age of 21 are treated as dependent family members for the above purposes. However, you will need to show that you have sole responsibility for the children.
Question:
I am an EEA national and working as a self-employed builder. I have been living in the UK with my Russian student partner since September 2018. I am single, and she is in the process of obtaining a divorce from her husband. Her student visa is now expiring. Can she apply as my unmarried partner and apply for a family visa?
Answer:
You can make an application for an EEA Pre-Settled Status as the unmarried partner of an EEA national exercising treaty rights in the UK. You need to show you are in a ‘durable relationship’ and that your relationship has begun on or before 31 December 2021, and you will need to prove that you have been actually residing with your partner by providing documentary evidence of living together such as bills, bank statements, NHS letters or other documents in your name or your boyfriend's name at the same address (ideally for at least two years). Apart from that, your Russian partner will have to get officially divorced as soon as possible.
Question:
I am a Ukrainian citizen and entered the UK in July 2019 on a visit visa. I am married to an EEA national who is working in the UK. Can I switch from visit visa to dependant of an EEA national?
Answer:
Generally no – unless there are medical reasons or other Covid-19 related reasons preventing you to leave the UK and apply from abroad. However, by standard immigration rules you can apply for an EEA Family Permit from outside the UK and then, once inside the country, apply for an EEA Pre-Settled Status as a married partner of an EU national, providing that your marriage was done before 31 December 2020. However, such applications could take several months, and it would be wise to seek professional assistance in making such an application.
Question:
I am a Polish national living and working in the UK. Can I invite my 55 years old mother to join me in the UK? Does she have to be more than 65 years of age?
Answer:
Yes, your mother can apply for an EEA Family Permit under the EU Settlement Scheme on the basis of you as a Polish national, if you provide documents confirming that you have been financially supporting your mother for the past several months.
Question:
How long does the Home Office take to process applications for EEA Pre-Settled and EEA Settled Status? I want to go on holidays in three months` time.
Answer:
The Home Office should consider applications for EEA Pre-Settled and EEA Settled Status maximum in 6 months but on average they take around 2-3 months. If you need to travel urgently and you are an EU national, you can make an application either for EEA Pre-Settled or EEA Settled Status and leave the UK for a while whilst your application is being considered with the Home Office.
Question:
I am an Australian married to an Italian citizen who is working in the UK. Should I obtain an EEA Family Permit from Australia, or I can make an application from here?
Answer:
By standard immigration rules you will need to apply for an EEA Family Permit from outside the UK and then, once inside the country, apply for an EEA Pre-Settled Status as a married partner of an EU national, providing that your marriage was done before 31 December 2020. They would give you entry as a family member of an EEA national for six months, and you can then make an application for an EEA Pre-Settled Status under the EU Settlement Scheme inside the UK for the 5-year duration.
Question:
My son and I are EU citizens. We both got our EEA Pre-Settled Status in the UK, first me, and a little later my son, whose application was added to mine. But my 13-year-old son, unlike me, currently lives and studies outside the UK. In 2022, having fulfilled the condition of the 5-year residence, I will apply for a Settled Status.
My question is, will my son get a Settled Status with me, or does he need to live in the UK for 5 years himself.
Answer:
Even though according to EEA immigration rules, the visa application form for a Settled Status does not require specifying the number of days a child has been absent from the UK over the past five years, or listing all his trips outside the country over the past five years, however, formally speaking, when applying for a Settled Status, it is assumed that the child must permanently reside in the UK and this country must be his permanent place of residence.
At the same time, when your child will apply for a Settled Status, he will need to provide documents showing his name in connection with a residential address in the UK, for example, utility bills, rental agreements if the accommodation is rented, letters from the school or GP doctor, etc. All this is necessary to show documents confirming the child's residence in this country and his registration in this country with various services or organizations. And such documents will need to be provided in the number of several documents for each year of the five-year period of residence in this country.
Question:
I am a citizen of Spain, I have lived with my mother previously in Spain (she has a Spanish residence permit, she is a citizen of the Dominican Republic).
I have received a long-term visa under the Skilled Worker Visa category in the UK – and I am already working here at the moment. How can I relocate my mother to the UK? How long do I need to live in the UK for that?
Answer:
According to the immigration rules, in general, there are two ways for your mother to join you – according to European immigration rules and according to British immigration rules.
In order for your mother to be able to apply for joining you according to European rules, you yourself had to get either a Pre-Settled or Settled status under the EU Settlement Scheme. However, since you do not have such a status, and you have received a Skilled Worker Visa according to the usual British immigration rules, unfortunately, your mother cannot follow European rules, despite the fact that you have Spanish citizenship.
Thus, you can potentially relocate your mother to the UK on the basis of British immigration rules, in particular using the Adult Dependent Relative Visa. According to this visa category, you will need to show that your mother needs long-term and permanent personal care due to age, illness or disability that are not available in her country of residence, that she cannot receive the necessary level of medical care in her country either because there is no person in this country who could reasonably provide it (either a close family member or a nurse/nursing home), or because the necessary level of medical care is not available, and you will also need to prove, that the mother will be properly maintained and accommodated in the UK without recourse to state benefits.
