Upper Tribunal confirms undocumented extended family members cannot benefit from EU Settled Status scheme

Extended family members who have made an application under the EU Settlement Scheme, without having first obtained a residence document under the Immigration (EEA) Regulations 2016 are not entitled to settled or pre-settled status. This is the conclusion of the Upper Tribunal in Batool and others (other family members: EU exit) [2022] UKUT 00219 (IAC).

The Tribunal also decided that appellants cannot rely on their human rights in EU Settled Status appeals, unless the Home Office consents to this.

Extended family members and the end of the Brexit transition period

Extended family members did not have automatic rights under EU free movement law in the same way that direct family members did. This meant that they had to apply for a residence document under EU free movement law before 31 December 2020 – when EU law ceased to apply in the UK.

Extended family members include unmarried partners, relatives who are dependent on the EU citizen, member of the EU citizen’s household, and those who require the personal care of the EU citizen on health grounds. A direct family member is a spouse or civil partner, a child under the age of 21, a dependent child over 21, or a dependent parent.

As noted in Batool there is a “fundamental distinction” between these two different types of family member. For extended family members, the UK has an obligation to “facilitate” their residence but can refuse to issue a residence document after undertaking an “extensive examination” of their personal circumstances.  

Without a residence document it is not possible to meet the definition of “durable partner” or “dependent relative” in Appendix EU and Appendix EU (Family Member) of the immigration rules.

In the case of Batool the appellants sought to get around the requirement to have first obtained a residence document by arguing that their EUSS application should have been treated by the Home Office as an application for “facilitation” under the 2016 Regulations. After all, the Withdrawal Agreement requires administrative procedures to be “smooth, transparent and simple” and application forms to be “short, simple, user-friendly and adapted to the context of this Agreement”.

The Upper Tribunal did not accept that the Home Office had failed to comply with these requirements.

If an application under the EU Settled Status Scheme could be treated as an application for “facilitation”, the Withdrawal Agreement would apply. This is because, under article 10(3) of the Withdrawal Agreement provides that people who applied before 31 December 2020 shall retain their right of residence in the UK.

As Mr Batool had not made a valid application under the 2016 Regulations before 31 December 2021, he could not benefit from the Withdrawal Agreement or the EU Settled Status scheme. 

This is consistent with the wording of article 10(3) which refers to family members “who have applied for facilitation of entry and residence before the end of the transition period, and whose residence is being facilitated by the host State in accordance with its national legislation thereafter”.

This envisages a two-stage process:

1. An application for facilitation under EU free movement law before 31 December 2020. In the UK, this was done under the 2016 Regulations.
2. Facilitation of residence “in accordance with national legislation” after 31 December 2020. In the UK, the “national legislation” referred to is Appendix EU and Appendix EU (Family Permit) which implement the EU Settled Status Scheme.

This second stage only applies to people who have completed the first stage. As highlighted in Batool, people who have completed the first stage can benefit from the EU Settled Status Scheme notwithstanding the repeal of the 2016 Regulations.

The EU Settled Status Scheme is the post-Brexit manifestation of EU free movement law. It is designed to ensure that everyone with EU free movement rights prior to Brexit can apply to stay in the UK. Someone who did not have an EU free movement right cannot apply. Extended family members who had not applied for a residence document by 31 December 2020 fell into this category.