These changes specifically address the position of UK nationals returning to the UK, after exercising their EU Treaty rights abroad (often known as “Surinder Singh” cases). This is a group that are often overlooked, but whom many employers will wish to protect as overseas secondment arrangements are reviewed ahead of Brexit.
The new rules confirm that the scheme will be open for close family members, provided that relationship was subsisting on the date the UK leaves the EU, until 29 March 2022, whether there is a deal or not. This category applies where the UK national has been living outside the UK, in the EU or Switzerland, with their close family member and the UK national has been exercising their rights of free movement.
For cases where a relationship was not in existence at the time of the UK’s exit from the EU, the EU Settlement Scheme will be available to them until 31 December 2020, again, whether or not there is a deal. Here, future spouses, durable partners and civil partners will be able to apply in circumstances where the UK national is living outside the UK, in the EU or Switzerland, and they are returning to the UK together, with the UK national having exercised free movement rights.
There have also been a few welcome clarifications, confirming that the family members of European citizens who have naturalised as British Citizens can still qualify under the scheme, even though the dual national themself is not eligible to apply. Family members of Irish nationals also qualify, even if the Irish national chooses not to make an application.
Another positive change is to allow offshore working by North Sea oil workers in the UK marine area to count as permitted absence, which means this time can count towards an application under the scheme.
The rules allow EEA citizens to bring dependent family members to the UK. In the case of parents, the rules originally said that dependency is “assumed”. However, from 1 October 2019, a person who is applying as the dependent parent of an EEA citizen who is under 18 years old will be required to prove their dependency in order to be granted status. This will in particular make it harder for non-EEA nationals to make applications based on their child’s EEA status.
The Home Office has been given additional discretionary rights to curtail pre-settled and settled status in circumstances where leave has been obtained by deception. There are also new discretionary powers to refuse applications where the EEA or Swiss national has been refused entry to the UK previously. This is a limited right and must be justified by public policy, security or public health grounds, or on the grounds that it would be conducive to the public good due to the applicant’s post-Brexit conduct. As the rights given to the Home Office are discretionary, applicants can challenge the decision, for example, where they have been incorrectly refused leave to enter the UK in the past and this is now affecting their application for settled status.
Brexit continues to provide challenges to EU workers and employers alike. If you would like further advice on the EU Settlement Scheme please contact a member of the Immigration team.
This article is from the September 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. Law covered as at September 2019.
The content of this article is for general information only. For further information please contact Clare Hedges or another member of Birketts' Immigration Team.