The Appeal rights for the Extended Family Members of the EU Nationals are expected to be implemented by 28 March 2019
EEA Regulations & Brexit Impact
The United Kingdom left the European Union on 31 January 2020 at 11 PM and entered a transition period, due to end on 31 December 2020. During this transition period, EU nationals can continue to enjoy their freedom of movement rights in the UK as they did before Brexit. The rights and status of EU, EEA and Swiss citizens living in the UK will remain the same until 30 June 2021. EU citizens and their family members who wish to remain in the UK after 30 June 2021 will need to apply for an immigration status to remain lawfully in the UK under the EU Settlement Scheme (EUSS). Although a new Scheme has been introduced to ensure continuity of residence for EU Nationals and their family members, previous routes under the EEA Regulations have not yet been closed, and applications can still be made if meeting the requirements.
What are the EEA Regulations?
The Immigration (European Economic Area) Regulations 2016 transposes the European citizens directive into domestic law in the UK, which provides the right to freedom of movement for EEA Nationals and their family members in the UK.
Under these regulations, EEA Nationals have been able to bring direct and extended family members to the UK if they qualified on any of the below routes:
EEA Regulation or EU Settlement Scheme?
EEA Regulations and the EU Settlement Scheme are two different things. The EEA Regulations were implemented in the UK Law to facilitate the movement of EEA Nationals within the member states. Since the occurrence of Brexit, the UK has allowed for a transitional period in which EEA Nationals and their family members will be able to regularize their status in the UK without having to return back home. This transitional period will end on 30 June 2021 and further changes to the UK Immigration system may be made after this period.
The main difference between the two is that under the EEA Regulations, the applicant must be a direct or extended family member of a ‘’qualifying person’’ or a person with permanent residence. It may also be necessary to provide evidence of sponsor exercising treaty rights by showing that they are working, seeking employment or studying in the UK. Under the EU Settlement Scheme, there is no requirement to provide evidence of the sponsor being a ‘’qualified person’’. However, they must be holding a valid Pre-Settled or Settled Status to remain in the UK and provide evidence of the respective residence to attain those status. In addition to this, the general evidence threshold is low on EUSS applications, for example evidence of dependancy is assumed for dependant parents under EUSS as opposed to EEA regulations.
In some other cases, for example when applying for Permanent residency under the EEA regulations, the status can normally be backdated. However under EUSS settled status, the status cannot be backdated and applicants would normally need to wait for 12 months after obtaining the status to apply for British Citizenship (unless they are married to a British Citizen).
Appeals Under EEA Regulations
A person served with an EEA decision, who has a right of appeal, may appeal against that decision to the First-tier Tribunal under Regulation 36(1). In the appeal, the appellant will have to demonstrate why the EEA decision was wrong. An EEA decision means a decision under the EEA Regulations that concerns a person’s entitlement to be admitted to the UK, to be issued with or have renewed, or not have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence or permanent residence card,removal from the UK or cancellation pursuant to regulation 25, on grounds of public policy, public security or public health, or on grounds of misuse of rights, of a person’s right to reside in the UK.
The Home Office further to the decision in the case of Banger (Unmarried Partner of British National)  UKUT 125 (IAC) has revisited their position in relation to the appeal rights for extended family members bringing them into scope of Regulations 36(1) of the 2016 Regulations and allowing for a right of appeal.
How can we assist?
Frequently Asked Questions
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