Prior to Brexit, EU nationals exercising their free movement rights were entitled to bring their family members to the UK with them. Certain family members had automatic rights of residence e.g. spouses/civil partners, children and dependent parents. There was however, a second class of family member, known as an ‘extended family’ member. Their rights were not automatic but they could apply to join or remain in the UK with their EU relative. Successful applicants would be granted an EEA (European Economic Area) family permit or residence card as confirmation of their relationship and rights of residence in the UK.
Their situation has been complicated by Brexit, and in particular, by the end of the transition period. Since 1 January 2021, it has no longer been possible for extended family members to apply for an EEA family permit or residence card.
Thanks to Brexit, EEA nationals and their family members now have to obtain status under the EU Settlement Scheme (EUSS) to protect their rights in the UK. There is scope for extended family members to make applications for leave to enter/remain under the EUSS. This however is dependent on the individual having been issued with a residence card under the EEA Regulations.
Those who applied before the 31 December 2020 deadline, and were issued with the permits, could rely on them until 30 June 2021 (see: EU Settlement Scheme family permit applications). The situation is complex for a number of individuals, such as those who applied for the permits before the deadline, and received refusal decisions after that date. These individuals could not simply re-apply, as would have been the case before, as the deadline had passed. Their only option was/is to lodge an appeal.
To further complicate matters, the Home Office is refusing to issue the permits to individuals whose appeals are allowed, and informing them that there are no options for them to enter/remain in the UK based on their relationship with their EEA relative as:
- They do not qualify under the EUSS, as they have not been issued with an EEA family permit – even though the Home Office are the ones refusing to issue them
- They are not eligible for EUSS family permits – which is correct, as the only individuals that qualify for EUSS family permits are a spouse/civil partner, an unmarried partner, a child/grandchild, and parent or grandparent. There is no ‘extended family member’ equivalent under this scheme.
What the above means, is that individuals who are recognised as ‘extended family members’ by the courts are facing a situation where they are being unfairly prevented from routes to enter/remain in the UK based on their relationship with their EEA relative. The situation is developing, and there is understandably interest in the sector to challenge this.