On 31 January 2020 at 11 p.m., the United Kingdom formally exited the European Union and started a transition phase that would finish on 31 December 2020. EU citizens may continue to exercise their freedom of movement rights in the UK as they did before to Brexit throughout this transition period. EU, EEA, and Swiss residents residing in the UK will retain their current rights and status until 30 June 2021. EU nationals and their family members wishing to stay in the UK after 30 June 2021 must apply for immigration status under the EU Settlement Scheme (EUSS). While a new Scheme has been established to provide continuity of residence for EU nationals and their family members, prior avenues under the EEA Regulations have not yet been closed, and applications are still being accepted if they fit the conditions.
What are the European Economic Area Regulations?
The Immigration (European Economic Area) Regulations 2016 transfer the European citizens directive into UK domestic law, granting EEA nationals and their family members the right to freedom of movement in the UK.
EEA nationals have been permitted to bring immediate and extended family members to the UK under these laws if they qualified via one of the following routes:
Permit de Familia EEA
This allows a non-EEA citizen family member of an EEA or Swiss person exercising Treaty rights to enter the UK, as embodied in UK law by the EEA Regulation. It is often utilised by extended family members, durable partners, and dependant relatives.
Residential rights derivate
This is for the main caregiver of an EEA/British child or dependent adult who lives in the UK and requires assistance with daily care, including medical and financial choices (often referred to as ‘Chen’, ‘Ibrahim and Teixeira’, and ‘Zambrano’ instances).
This is for people who have resided in another EEA nation with a British citizen exercising EU Treaty rights before returning to the UK to live with them (often referred to as ‘Surinder Singh’ instances).
Retained residency rights
This category is for those who formerly had a right of residence in the UK as a family member of an EU citizen but their relationship has ended, the sponsor has died, or the sponsor is the parent with custody of a child who retains their right of residence.
EU Settlement Scheme or EEA Regulation?
The EEA Regulations and the European Union Settlement Scheme are two distinct entities. The EEA Regulations were incorporated into UK law in order to ease the movement of EEA citizens between member states. Since the implementation of Brexit, the UK has provided for a transitional period during which EEA nationals and their family members may regularise their status in the UK without having to return home. This transitional phase will conclude on 30 June 2021, and further changes to the UK immigration system are possible.
The primary distinction between the two is that the applicant must be a direct or extended family member of a “qualified person” or a person having permanent residence under the EEA Regulations. Additionally, documentation of the sponsor exercising treaty rights may be required by demonstrating that they are employed, seeking employment, or studying in the UK. There is no necessity under the EU Settlement Scheme to demonstrate that the sponsor is a “qualified person”. To stay in the UK, individuals must have a valid Pre-Settled or Settled Status and present documentation of their respective domicile. Additionally, the overall evidentiary requirement is lower for EUSS applications; for example, proof of dependent parents is presumed under EUSS rather than EEA standards.
In some other circumstances, such as when seeking permanent residence under the EEA legislation, the status may often be retroactively granted. EUSS settled status, on the other hand, cannot be retroactive, and candidates must generally wait 12 months after gaining settled status before applying for British citizenship (unless they are married to a British Citizen).
Appeals Pursuant to the EEA Regulations
A person who has been served with an EEA judgement and has a right of appeal may appeal to the First-tier Tribunal according to Regulation 36. (1). The appellant’s burden on appeal will be to establish why the EEA judgement was incorrect. An EEA decision is one made pursuant to the EEA Regulations that concerns a person’s entitlement to be admitted to the UK, to be issued with or renew, or not to have revoked, a registration certificate, residence card, derivative residence card, document certifying permanent residence, or permanent residence card, or to be removed from the UK or cancelled pursuant to regulation 25, on grounds of public policy, public security, or public health, or on grounds of right misuse.
The Home Office has reconsidered its stance on extended family members’ appeal rights in light of the judgement in Banger (Unmarried Partner of British National)  UKUT 125 (IAC], putting them within the scope of Regulations 36(1) of the 2016 Regulations and allowing for an appeal.