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5. How will the application process work?
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7. What will status under the EU Settlement Scheme provide?

6.What family members will be eligible for the scheme?

6.1.Family members who are living with, or join, an EU citizen resident in the UK by the end of the implementation period on 31 December 2020 will be eligible to apply for status under the EU Settlement Scheme. They will be able to apply under the scheme on their own account, but non-EU citizen family members may prefer, where possible, to apply once the relevant EU citizen has done so and been granted status as this is likely to make it easier and quicker for the family member to demonstrate their eligibility (see paragraph 5.9, above). Applications made by families at the same time will be considered together.

6.2.In addition, the scheme will be open to EU citizen and non-EU citizen close family members resident overseas on 31 December 2020. Under the agreement on citizens’ rights reached with the EU, an EU citizen resident in the UK by 31 December

2020 will be able to be joined at any point thereafter by close family members15 resident overseas, if the relationship existed on 31 December 2020 and it continues to exist when the family member applies to come to the UK. The scheme will also be open in certain circumstances to a non-British citizen child born in the UK or overseas after 31 December 2020 to (or adopted by) a parent or parents eligible for status under the scheme.

6.3.The rest of this section provides more information about who these family members may be and the requirements they will need to meet in applying for status under the EU Settlement Scheme.

6.4.Where the applicant is an EU citizen who is resident here by 31 December 2020 as a family member of an EU citizen (or British citizen) resident in the UK, they will be able to rely on their own continuity of residence as an EU citizen to apply for status under the scheme. Where they are the family member of an EU citizen, they will not need to provide evidence of their family relationship to that person, unless:

They are relying on that relationship in one of the categories eligible for settled status with less than five years’ continuous residence, as described in paragraph

3.7, above.

They are relying on a retained right of residence after that relationship has ended, as described in paragraph 6.9, below.

They became an EU citizen within a period of continuous residence in which they otherwise rely on having been a family member of an EU citizen.

6.5.Otherwise, the following family members of an EU citizen16 who is continuously resident here by 31 December 2020 (as described in section 3, above) will be eligible to apply for status under the scheme, where they are continuously resident in the UK by that date or where (except for dependent relatives17) they join the EU citizen here after 31 December 2020:

The spouse or civil partner of the EU citizen, where:

-The marriage was contracted or the civil partnership was formed by 31 December 2020; or

-The marriage was contracted or the civil partnership was formed after 31 December 2020, but the couple had formed a durable partnership by 31 December 202018 and the partnership remained durable at that date.

The durable partner of the EU citizen, where:

-The partnership was formed and was durable by 31 December 2020; and

-The partnership remains durable.

The child or dependent parent of the EU citizen.

The child or dependent parent of the spouse or civil partner of the EU citizen, as described in the first bullet point, above.

Where they are continuously resident in the UK by 31 December 2020, the dependent relative of the EU citizen and that family relationship and dependency existed before that date.

Where both parties were continuously resident in the UK before 1 February 2017, the dependent relative of the spouse or civil partner of the EU citizen, as described in the first bullet point, above, and that family relationship and dependency existed before 1 February 2017.

6.6.The following detailed criteria will apply in respect of each of these categories of family member at the date the person applies under the scheme:

Spouse – the person is party to a marriage with the EU citizen and the marriage is recognised under the law of England and Wales, Scotland or Northern Ireland or is lawfully recognised in the country in which it was contracted;19 it is not a marriage of

convenience;20 and neither party has another spouse, a civil partner or a durable partner with immigration status in the UK based on that person’s relationship with that party.

Civil partner – the person is in a civil partnership (under or by virtue of the Civil Partnership Act 2004, or in a same sex relationship registered overseas which is entitled to be treated as a civil partnership under that Act) with the EU citizen; it is not a civil partnership of convenience; and neither party has another civil partner, a spouse or a durable partner with immigration status in the UK based on that person’s relationship with that party.

Durable partner – the person is in a durable relationship with the EU citizen, with the couple having lived together in a relationship akin to a marriage or civil partnership for at least two years (unless there is other significant evidence of the durable relationship); and

-the person holds a relevant document21 as the durable partner of the EU citizen (which was applied for by 31 December 2020), unless the date of application is after 31 December 2020 and the person was resident outside the UK at that date. Where the applicant is seeking to come to the UK after 31 December 2020, they must provide evidence which satisfies the Home Office caseworker that the durable partnership was formed and was durable before that date and that the partnership remains durable; and

-it is not a durable partnership of convenience; and neither party has another durable partner, a spouse or a civil partner with immigration status in the UK based on that person’s relationship with that party.

Child – the person is the direct descendant of the EU citizen or of their spouse or civil partner22 (and therefore includes a grandchild or great-grandchild), and:

-is under the age of 21 years; or

-is aged 21 years or over and is dependent on the EU citizen (or on their spouse or civil partner). ‘Dependent’ means23 that:

(a)having regard to their financial and social conditions, or health, the applicant cannot meet their essential living needs (in whole or in part) without the financial or other material support of the relevant EU citizen or of their spouse or civil partner; and

(b)such support is being provided to the applicant by the relevant EU citizen or by their spouse or civil partner; and

(c)where the applicant was aged 21 years or over when they came to the UK to join the EU citizen or their spouse or civil partner, the need for such support existed in the applicant’s state of origin or in the state from which they came to the UK, but there is no need to determine the reasons for that dependence or for the recourse to that support.

In addition, ‘child’ includes an adopted child or a child born through surrogacy (where recognised in UK law). It does not currently include a child cared for by the EU citizen (or by their spouse or civil partner) solely by virtue of a legal guardianship order24 or a formal or informal fostering arrangement,25 but we are looking further at those and other aspects of the definition.

Dependent parent – the person is the direct relative in the ascending line of the EU citizen or of their spouse or civil partner26 (and includes a grandparent or great- grandparent), and the dependence of the direct relative in the ascending line on the EU citizen (or on their spouse or civil partner) is assumed.

Dependent relative – the person is a relative of their sponsor but not their spouse, civil partner, durable partner, child or dependent parent; and holds a relevant document27 as their dependent relative (which was applied for by 31 December

2020). Their ‘sponsor’ means:

(a)an EU citizen who has been or is being granted indefinite leave or limited leave under the scheme (or who would be granted that leave, if they made a valid application under the scheme); or

(b)before 1 February 2017, the spouse or civil partner of such an EU citizen.28

6.7.A family member applying for status under the scheme who does not already hold a permanent residence document will need to provide evidence of the family relationship for the relevant period through the following required evidence of family relationship:29

(a)Spouse – a relevant document issued under the EEA Regulations as the spouse of the EU citizen, or a valid marriage certificate recognised under the law of England and Wales, Scotland or Northern Ireland or of the country in which the marriage was contracted.

(b)Civil partner – a relevant document issued under the EEA Regulations as the civil partner of the EU citizen; a valid civil partnership certificate recognised under the law of England and Wales, Scotland or Northern Ireland; or the valid overseas registration document for a same sex registered relationship which is entitled to be treated as a civil partnership under the Civil Partnership Act 2004.

(c)Child – a relevant document issued under the EEA Regulations on the basis of the relevant family relationship; their full birth certificate; or other documentation which the Home Office caseworker is satisfied evidences that the applicant is the direct descendant of the EU citizen (or of their spouse or civil partner).30 The caseworker can accept a short birth certificate if they are satisfied that other evidence corroborates it and they have no concerns about the child’s relationship to the relevant person.

(d)Dependent parent – a relevant document issued under the EEA Regulations on the basis of the relevant family relationship or other documentation which the Home Office caseworker is satisfied evidences that the applicant is the direct relative in the ascending line of the EU citizen (or of their spouse or civil partner), such as their child’s full birth certificate or other documentation which names the applicant as that person’s parent. Where the person on whom the applicant is dependent is their grandchild, the applicant must provide their child’s full birth certificate or other documentation which names the applicant as that person’s parent, and their grandchild’s full birth certificate or other documentation which names their parent.

(e)Durable partner – a relevant document issued under the EEA Regulations as the durable partner of the EU citizen and, unless this confirms the right of permanent residence in the UK under regulation 15 of the EEA Regulations, evidence which satisfies the Home Office caseworker that the durable partnership continues to subsist (or did so for the period of residence relied upon). Or, where the applicant is seeking to come to the UK after 31 December 2020, evidence which satisfies the Home Office caseworker that the durable partnership was formed and was durable before that date and that the partnership remains durable.

(f)Dependent relative – a relevant document issued under the EEA Regulations as the dependent relative of their sponsor and, unless this confirms the right of permanent residence in the UK under regulation 15 of the EEA Regulations, evidence which satisfies the Home Office caseworker that the relationship and dependency continue to subsist (or did so for the period of residence relied upon).

6.8.In addition, where the family member applying for status under the scheme is a non-EU citizen without the documented right of permanent residence, they will need to provide proof of the identity and nationality of the EU citizen of whom the applicant is the family member (or was so for the relevant period). This will be the EU citizen’s valid passport or their valid national identity card. The Home Office may accept alternative evidence of the identity and nationality of the EU citizen where the applicant is unable to obtain or produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons. They will also need to provide evidence of that EU citizen’s continuous residence in the UK as well as their own. Evidence of the

EU citizen having been granted status under the scheme will constitute sufficient evidence of that person’s identity, nationality and continuous residence (for the period on the basis of which they were granted status).

6.9.Under the Free Movement Directive, some family members retain the right of residence after their relationship with an EU citizen resident in the UK has ended. Where they are themselves an EU citizen, they will be able to rely on their own continuity of residence to apply for status under the scheme. Otherwise, these family members will be able to rely on the retained right of residence as well as their earlier continuous residence as a family member of an EU citizen to establish their eligibility for settled status (indefinite leave to remain) after five years’ continuous residence in total, or for pre-settled status (five years’ limited leave to remain), in the following circumstances:

The applicant is a non-EU citizen family member of an EU citizen who was continuously resident in the UK by 31 December 2020 and that EU citizen has died; and the applicant was continuously resident in the UK as their family member for at least a year immediately before their death; or

The applicant is the child of an EU citizen who was continuously resident in the UK by 31 December 2020 and that EU citizen has died (or of their spouse or civil partner immediately before their death) – or is the child of an EU citizen who was continuously resident in the UK by 31 December 2020 and then ceased to be so (or of their spouse or civil partner at that point) – and the child was attending an educational course31 in the UK immediately before the EU citizen died or ceased to reside in the UK, and continues to attend such a course; or

The applicant is an EU citizen or non-EU citizen who is the parent with custody of such a child (meaning that the child normally lives with them or does so part of the time, and includes arrangements which have been agreed informally and those

which are subject to a court order for determining with whom the child is to live and when); or

The applicant is a non-EU citizen who ceased to be a family member of an EU citizen who was continuously resident in the UK by 31 December 2020 on the termination of their marriage or civil partnership with that person; the applicant was resident in the UK at the date of the termination; and one of the following applies:

(a)Prior to the initiation of the proceedings for the termination of the marriage or the civil partnership, the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had been continuously resident in the UK for at least one year during its duration; or

(b)The applicant has custody of a child of the EU citizen (as above); or

(c)The applicant has the right of access to a child of the EU citizen, where the child is under the age of 18 years and where a court has ordered that such access must take place in the UK; or

(d)The continued right of residence in the UK of the applicant is warranted by particularly difficult circumstances, such as where the applicant or another family member has been a victim of domestic violence or abuse whilst the marriage or civil partnership was subsisting.

6.10.There are certain other categories who have a right of residence, not under the Free Movement Directive, but under wider EU law, and will have their residence rights protected by the Withdrawal Agreement in line with their current rights. These are Chen carers and Ibrahim and Teixeira children or carers:32

A Chen carer is a primary carer of a self-sufficient EU citizen child or children in the UK;

An Ibrahim and Teixeira child is a child of a former EU citizen worker and is in education in the UK, and an Ibrahim and Teixeira carer is the primary carer of such a child; and

Others who need a right of residence in the UK in order for a Chen or Ibrahim and Teixeira child to remain in the UK (e.g. other children of the primary carer).

6.11.These persons may be EU citizens eligible to apply for status under the EU Settlement Scheme. Otherwise, provision will be made in the Immigration Rules for them to apply for leave to remain, consistent with the Withdrawal Agreement. Their current rights do not lead to a right of permanent residence under EU law, but further details will be provided in due course on the new status available to them.

6.12.In addition, in respect of the following categories involving a British citizen in circumstances which are not protected by the Withdrawal Agreement, we have decided, as a matter of domestic policy, that:

A non-EU citizen family member of a British citizen who is lawfully resident in the UK by the end of the implementation period on 31 December 2020, by virtue of regulation 9 of the EEA Regulations (the ‘Surinder Singh’ route, which leads to a right of permanent residence under EU law), will be eligible to apply for status under the EU Settlement Scheme.

A non-EU citizen who is the primary carer of a British citizen in the UK and also currently derives a right of residence from wider EU law (a Zambrano carer) will be provided for in the Immigration Rules. Their current rights do not lead to a right of permanent residence under EU law, but further details will be provided in due course on the new status available to them.

15A spouse, civil partner, durable partner, dependent child or grandchild (including of the spouse or civil partner), or dependent parent or grandparent (including of the spouse or civil partner).

16This includes a dual British-EU citizen in line with the CJEU judgment in Lounes.

17As defined in paragraph 6.6.

18And the applicant holds a relevant document as the durable partner of the EU citizen, as described in paragraph 6.6, below.

19Awuku v SSHD [2017] EWCA Civ 178

20A marriage, civil partnership or durable partnership of convenience is entered into as a means to

circumvent:

(a)any criterion the party would have to meet in order to enjoy a right to enter or reside in the UK under the EEA Regulations; or

(b)any other provision of UK immigration law or any requirement of the Immigration Rules; or

(c)any criterion the party would otherwise have to meet in order to enjoy a right to enter or reside in the UK under EU law.

21 A family permit, registration certificate, residence card, document certifying permanent residence or permanent residence card which:

(a)was issued by the UK under the EEA Regulations (and was not subsequently revoked, or fell to be so, because the relationship had never existed or had ceased); and

(b)has not expired or remained valid for the period of residence relied upon. 22 As defined in paragraph 6.5.

23In light of the CJEU judgment in Reyes, paragraphs 20-25.

24Where the child is a relative of the guardian, they may be able to come within the definition of ‘dependent relative’ as set out in this paragraph.

25This does not prevent an application being made by or on behalf of a ‘looked after’ child whom the local authority has placed in foster care.

26As defined in paragraph 6.5.

27A family permit, registration certificate, residence card, document certifying permanent residence or

permanent residence card which:

(a)was issued by the UK under the EEA Regulations (and was not subsequently revoked, or fell to be so, because the dependency had never existed or had ceased); and

(b)has not expired or remained valid for the period of residence relied upon.

28As defined in paragraph 6.5.

29In line with the draft Withdrawal Agreement, where the applicant submits a copy of this evidence, the Home Office caseworker can only require the applicant to submit the original document where the caseworker has reasonable doubt as to the authenticity of the copy submitted.

30As defined in paragraph 6.5.

31A general educational course, apprenticeship or vocational training course. 28

32Referred to by reference to the relevant CJEU judgment; likewise, those referred to in paragraph 6.12.

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7. What will status under the EU Settlement Scheme provide?


 

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