Following the United Kingdom’s exit from the European Union (‘EU’) (also known as ‘Brexit’) on 31 January 2020, free movement has now ended for EEA Nationals, with the exception of Irish Citizens.
The deadline for EEA nationals and their family members to apply for ‘pre-settled status’ or ‘settled status’ under the EU Settlement Scheme is 30 June 2021 with some exceptions.
Will the close family members of EEA and Swiss Nationals still be able to join an EEA National in the UK?
If an EEA national was resident in the UK by 11pm GMT on 31 December 2020 and would be eligible for pre-settled or settled status if they were to apply for it, or have already applied for it, their close family members can still join them in the UK.
Which family members fall within the definition of ‘close family member’ under the EU Settlement Scheme?
- A spouse or civil partner;
- An unmarried partner – to qualify as an unmarried partner, you must have been living with your EEA National partner in a relationship akin to a marriage or civil partnership for at least two full years prior to 31 December 2020;
- Child or grandchild under 21 years old, or dependent child or grandchild of any age; and
- A dependent parent or grandparent.
Conditions to meet if you wish to bring your family member(s) to the UK on or after 1 January 2021
From 1 December 2020, joining family members of EEA/Swiss Nationals who enter the UK as a visitor, other than as a marriage visitor, cannot apply for a status under the EU Settlement Scheme (‘EUSS’). Instead, they must apply for an EEA Family Permit or an EU Settlement Scheme Family Permit prior to travelling to the UK. The deadline for making an application under the EUSS is 30 June 2021, however, any family members entering the UK on or after 1 April 2021 will have three months from the date of their arrival to submit an application. The application must be made within three months if the family member arrives on or after 1 April 2021 and before 1 January 2026 if they are the eligible family member of a Swiss Citizen. There is currently no deadline for family members to apply for an EU Settlement Scheme Family Permit unless they are the family member of a Swiss Citizen as per the above. The deadline to submit an application for an EEA Family Permit is 30 June 2021, and extended family members can no longer apply. The gov.uk website sets out a comprehensive overview of the two different types of permits here: https://www.gov.uk/family-permit
The amended Immigration Rules now distinguish between two main types of family members:
- Family member of a relevant EEA Citizen – an eligible family member who resided in the UK with their EEA National family member on or before 31 December 2020 and have not spent more than 6 months outside of the UK in any consecutive 12-month period since their period of residence began unless extenuating circumstances apply.
- Joining family member of a relevant EEA Citizen – Family members who have not resided in the UK prior to 31 December 2020 and can demonstrate that the relationship with the relevant EEA national commenced prior to 31 December 2020, except in the case of a child who was born or adopted after that date. The relationship needs to continue to exist at the date of application. This may apply to both EEA or third-country nationals who have not been resident in the UK by 31 December 2020 or were resident prior to this date but whose continuous residence was broken (for example through at least 6 months’ absence in a 12-month period since their period of residence began).
Only joining family members need to apply for a permit before travelling to the UK.
What if my relationship with my non-British/non-Irish family member began on or after 1 January 2021?
Your family member will need to make an application under Appendix FM of the Immigration Rules to join you in the UK, rather than Appendix EU unless they are your child who born or adopted after this date. This means you and your family member will be subjected to meeting the onerous financial requirement as well as the English language requirement, neither of which the family members of EEA Nationals were previously subjected to. You can sponsor your family member if you have pre-settled or settled status under the EUSS. You can also sponsor them if you have indefinite leave to remain in the UK, refugee status or humanitarian protection, and of course, British Citizenship.
Applying for Pre-Settled Status and Settled Status
Pre-settled status will automatically be granted if have been resident in the UK for less than 5 years. If you are approved for pre-settled status, you will be granted limited leave to remain in the UK for 5 years.
After completing 5 years continuous residence in the UK, both EEA and Swiss nationals and non-EEA and Swiss family members will be entitled to apply for ‘settled status’ in the UK. The application must be made before their pre-settled status expires.
Once settled status has been obtained, there is no time limit for how long you would be able to remain in the UK.
What constitutes 5 years’ continuous residence?
If you spend 6 months’ or more outside of the UK in any consecutive 12-month period, you will no longer be ‘continually’ resident in the UK. This is an important factor to consider if you intend to apply for settled status in the future.
How long can you spend outside of the UK without losing your pre-settled status or settled status?
If you have pre-settled status, you can spend up to 2 years outside the UK without affecting your immigration status in the UK. You would, however, be required to maintain your continuous residence if you want to qualify for settled status (explained above).
If you have settled status, you can spend up to 5 years outside the UK without losing your status.
If you’re a Swiss citizen, you and your family members can spend up to 4 years in a row outside the UK without losing your settled status.
If you’re the family member of a British Citizen who is exercising their EEA Treaty Rights in another EEA member state
If you have lived outside the UK in another EU/EEA country with your British Citizen family member, you may be eligible to apply to enter the UK under Appendix EU of the Immigration Rules. You will be required to make an application for an EEA Family Permit (before 30 June 2021) or an EU Settlement Scheme Family Permit via the ‘Surinder Singh’ route prior to travelling to the UK.
The deadline for you to return to the UK will depend on your relationship with your British Citizen family member.
You must return to the UK and apply to the scheme by 11pm 29 March 2022 if you’re:
- A spouse, civil partner, or unmarried partner and your relationship started before 1 February 2020;
- Under 21 years old, and are their child or grandchild;
- 21 years or older, and are their dependent child or grandchild; and
- Dependent parent or grandparent.
You must have returned to the UK by 31 December 2020, and apply by 30 June 2021, if you’re:
- A spouse, civil partner or unmarried partner and your relationship started on or after 1 February 2020; and
- Another dependent relative.
Your British family member must also have been working, studying, or were self-sufficient in the EEA country whilst you were living there.
It is worth nothing that family members of British Citizens will not be able to use the online service under the EU Settlement Scheme and will need to contact the EU Settlement Resolution Centre to find out how to apply.
If instructed, we will contact the EU Settlement Resolution Centre on your behalf.
How we can help?
If you require any further information in relation to the EU Settlement Scheme, please feel free to contact our expert immigration team on +44 161 826 6922.