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The Immigration Law Practitioners’ Association (ILPA) recently drafted a joint commentary on the EU Settlement Scheme for EU citizens and their family members living in the UK by 31 December 2020. The commentary highlighted a number of aspects and issues which are detailed in the following paragraphs.

The core policy document taken into account is the Appendix EU to the Immigration Rules, which is designed to transfer the citizens’ rights provisions of the Draft Withdrawal Agreement (which only protects those whose right of residence is governed by Directive 2004/38) into UK legal framework. Currently are not covered by the scope of Appendix EU Teixeira/Ibrahim family members, Chen carers, and frontier workers.

The details and residence requirements to be satisfied in order to obtain settled or pre-settled status under Appendix EU are the following –
A “relevant EU citizen” is an EU citizen who, under Appendix EU, has been resident in the UK for a continuous qualifying period (continuity of residence), that must have begun before the ‘specified date’, the 31 December 2020 and who can apply for settled or pre-settled status in the UK.

Those who have entered the UK right before the above-mentioned deadline and those who have entered previous to that date but are not present on the territory on the specified date will also qualify for limited leave to remain under Appendix EU.
The continuity of residence to be satisfied requires that any absence from the UK is 6 months or fewer in any 12-month period unless such absence is motivated by important reasons. No further specific details regarding the absence calculation have been given at this time.

EU nationals will not be required to have exercised their Treaty Rights under the Citizens Directive 2004/38 to be eligible for leave under Appendix EU.

Appendix EU also provides rights of residence for a number of ‘close’ family members who join the EU national who holds leave to remain under Appendix EU after the 31 December 2020. However, at the moment there are also a number of dependants who are covered neither by Appendix EU nor by any other immigration route, for instance, married or unmarried partners whose family relationship did not pre-date the specified date.

Regarding the possibility to lose the pre-settled status once granted, currently, the Home Office website states that “you should be able to spend up to two years in a row outside the UK without losing your pre-settled status”. However, this has not been clearly defined yet and those who will be granted limited leave to remain might need to maintain continuity of residence and refrain from long absences from the UK, as their leave to remain would be liable for curtailment (under Rule 323(ii)).

The application procedure to be carried out under Appendix EU will consist also of an interview, however, no further details are given on such aspects. The applicant will be also issued with a Certificate of Application to confirm that they have made the application. Applications under Appendix EU can only be made from within the UK.
Additionally, in the commentary is also reported that – the Statement of Changes HC1534 provides that there will be no right to Administrative Review where an applicant is refused on grounds of suitability. As currently worded, this might lead to significant risks for those applicants who will be refused on suitability grounds as a result of innocent mistakes.

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