The transition period is coming to an end in December 2020, and EU nationals and their family members need to make an application to the UK’s EU Settled Status (EUSS) scheme before the end of the grace period in June 2021. Those family members can include non-EU nationals who, due to their family circumstances, might also be eligible to apply.
If you are not an EU national, but you are, for example married to one (e.g. a Brazilian husband with a Polish wife), or you are the family member of an EU national living in the UK (child or parent for example), you can also make an application under the EUSS scheme to regularise your status in the UK.
This group is often referred to as ‘non-EU family members of EU nationals’ (NEFM) – a clunky label, but not an insignificant group.
However, new statistics released by the Home Office last week show a significantly high refusal rate for NEFM applying under the EU Settlement Scheme (EUSS).
To date, there have been 205,990 applications to the scheme by non-EEA nationals (with 151,160 concluded decisions), meaning that NEFM currently represent about 5.5% of the total number of applications to the scheme (as at June 2020).
The lack of in-depth data around these applications makes it difficult for any solid conclusions to be drawn, but we can note the following.
First, we suspect many NEFM are not applying for the scheme. Advisors from across East Anglia tell us they are worried many people simply do not know they need to apply under the scheme, due in part to official communication around the scheme which focuses heavily on EU nationals.
I am worried about those who had derivative rights for many years now under EEA regulations and who think that they do not need to apply for EUSS. We had one client just before lockdown and she said that she was only applying because the Jobcentre had told her she needed to – she had no idea; she has lived in the UK for 10 years. (Immigration Advisor, Norfolk)
Second, among those who have applied, NEFM are receiving higher levels of pre-settled status (as opposed to settled status for those who have been in the UK for five years) than any of the other groups (EU nationals, EEA-EFTA nationals, and Swiss citizens), with 96,250 NEFM receiving pre-settled status and only 50,550 settled status as of June 2020.
Some suggest this could be because of the increased evidential burden placed on NEFM involving more complex areas of immigration law, potentially resulting in some people not receiving the correct status to which they are entitled.
The easiest way for a NEFM to apply for EUSS is by linking their application to one already made by their EU family member who must have themselves been granted pre-settled or settled status.
However, there may be difficulties over evidential requirements to prove the existing relationship, or delay in processing these applications at different times. This may help to explain a higher incidence of pre-settled status.
Third, there is a high number of refusals among this group of NEFM. Despite representing such a small number of the total applications (NEFM applications are just 5.5% of the total applications) this group represents 50% of the total refusals for the entire scheme.
This increases to 61% in the case of so-called Zambrano carers (named after an ECJ case of that name) – situations where the NEFM’s residence in the UK is derived from being the carer of an EU national child.
In its updated guidance, published in May 2019, the Home Office introduced a requirement that Zambrano carers must have attempted an application under UK immigration rules (such as an Appendix FM application or any other ECHR Article 8 route, which are UK immigration application routes for those non-EU nationals seeking to enter or remain in the UK on the basis of their family life with a person who is a British citizen) before an EUSS application can be made.
This requirement means a much more complex immigration route for Zambrano carers with application costs starting at £1,033, but it offers more certainty given the high refusal rates under EUSS. Refusals under this category mean in reality that a British child might need to leave both the UK and the EU with their non-EU parent/carer.
Zambrano carers are not alone. There are also Chen carers (a primary carer of a ‘self-sufficient’ EEA national child) and Ibrahim/Teixeira cases (the child of an EEA national worker/former worker where that child is in education in the UK and the primary carer of the child) and ‘Surinder Singh’ spouses (non-EU spouses married a UK national, who went to another EU state with their spouse and then returned to the UK).
These derivative right holders have to make their EUSS application on paper (unlike the largely digital-only pathway for other applicants to the scheme).
Organisations we spoke to report that these more complex applications take much longer than the digital application of EUSS for other groups, not least because a paper form must be requested.
One application I submitted in October 2019, the decision came back in March 2020 – the process was a lot longer and much more complex but in this instance the outcome was positive which was good news as the waiting time was very stressful for my client. (Immigration Advisor Suffolk, ‘Surinder Singh’ application).
This waiting time for decisions is significant for those who might need to appeal their decision or might need time to secure further evidence to support their application with a cliff-edge deadline in which to apply.
In fact, a right of appeal was only introduced to those who made applications on or after 31 January 2020. The table below shows the number of applications by those with derived rights received and concluded by the Home Office between August 2018 and June 2020.
All of this is made more complex by that fact that immigration advice services have had to switch to online services during Covid-19, adding a further logistical challenge of supporting a client remotely with their paper application.
The figures available illustrate the complexity of non-EU family member applications compared to those of EU nationals which by comparison are undertaken via an online platform with only a 0.04% refusal rate.