EEA nationals: what to expect at the UK border

Updated guidance issued by the Home Office

Brexit brought an end to freedom of movement for EEA nationals and their family members wishing to live and/or work in the UK.  A transition period was allowed for individuals to make the requisite applications for leave to enter and remain in the UK. However, that period has now ended. There has been a lack of clarity about how EEA nationals and their family members now arriving in the UK will be treated.  On 6 January 2022 the Home Office provided new guidance on this issue. The guidance highlights how individuals will be treated depending on whether they hold status under the EU Settlement Scheme (EUSS), have made a pending application under the scheme or have missed the deadline to do so.  Below is a summary of the key points of the guidance.  

Family Members 

• As the 30 June 2021 deadline to apply to the EUSS has now passed, the key point to remember for family members joining the EUSS holder in the UK is that they must make an application within three months of arriving
• The joining family member will be required to hold an EUSS family permit, have obtained EUSS leave (or other form of leave) or have a pending application for EUSS leave

Deadlines 

• There are no deadlines for applying for an EUSS family permit. All that’s required is that the family relationship existed before 31 December 2020 (except for children born or adopted after this date)
• An individual who enters the UK with an EUSS family permit must apply to the EUSS within three months of their first arrival in the UK
• Family members of Qualifying British citizens who have not applied to the EUSS by 30 June 2021 must return to the UK with their family member and apply to the EUSS by 29 March 2022.  They must enter with a family permit or EUSS leave

Late applications

• Late applications can be made where there are ‘reasonable grounds’ for the application not being made in time  
  • 'Reasonable grounds' is not strictly defined but the general EUSS information about how late applications will be considered provides some examples. In general, the more time which has elapsed since the relevant deadline, the harder it will be to satisfy UKVI that, at the date of application, there were reasonable grounds for failing to meet that deadline
  • Some examples of what may constitute reasonable grounds include where: 
    • A responsible adult failed to apply on behalf of a child 
    • An individual lacked the physical or mental capacity to apply 
    • An individual has care or support needs
    • An individual had a serious medical condition or was undergoing significant medical treatment around the time of the deadline 
    • An individual was a victim of modern slavery 
    • An individual was a victim of domestic violence or abuse, or was in a controlling relationship or situation which prevented them from applying 
  • The above list is not exhaustive, and the guidance states that individual circumstances will be taken into consideration in each case

Temporary Protection 

• An EEA national or their family member who was resident in the UK by 31 December 2020 and who has submitted a late application to the EUSS will have Temporary Protection status from the point of making a valid application i.e. when they are issued a Certificate of Application
• Temporary Protection is not a grant of leave but if someone holds Temporary Protection status they can be granted Leave outside the Rules (LOTR) to allow them to enter the UK 
• Individuals with Temporary Protection status can:
  • Live, work and study in the UK
  • Access public funds
  • Travel using a valid national ID card if they are an EEA national 
• In the following limited circumstances a family member who arrives at the UK border without entry clearance can be granted Temporary Protection status:
  • A joining family member who has a pending application to the EUSS will have Temporary Protection status if they hold a valid or expired EUSS family permit, EEA family permit or UK-issued EEA Regulations residence card. They will require a grant of leave at the border, unless they have a valid EUSS family permit
    
  • A joining family member who has not yet applied to the EUSS will have Temporary Protection status if they hold a valid or expired EUSS family permit, or a valid UK-issued EEA Regulations residence card. They will require a grant of leave at the border, unless they have a valid EUSS family permit. A claimed joining family member who has not yet applied to the EUSS should only be granted leave on one occasion to make an application in country (unless they hold a valid EUSS family permit which they can use for multiple entries until it expires)
  • If neither of the above apply then Temporary Protection may still be granted if there are compelling or compassionate reasons.  Where the joining family member is a child or vulnerable adult this will almost always be considered a compelling and compassionate reason for granting Temporary Protection
  • An in-country family member will have Temporary Protection status as soon as they make a valid EUSS application
  • Temporary protection is granted for 3 months 
• From 6 October 2021 Appendix EU allows individuals in the UK as visitors to apply to switch into EUSS as a joining family member 
  
• However, people entering the UK as visitors who are identified by immigration officers as having no intention to leave the UK at the end of their visit and instead as intending to apply to settle in the UK as a family member may still be refused entry
• In compelling or compassionate circumstances, entry as a visitor may be refused but immigration bail granted to allow the individual to make an in country EUSS application
• Individuals who arrive at the UK border and who have not made an application under the EUSS but were living in the UK by 31 December 2020 should provide evidence to prove this.  They may then be refused permission to enter but granted immigration bail to allow them to make an EUSS application in country  

Juxtoposed ports 

• These include the ports at Calais, Dunkirk, Coquelles, Paris Gare du Nord, Lille, Calais-Frethen and the Brussels Midi stations.  UK border controls operate at these ports
• EEA nationals or their family members at these ports who have not made an application under the EUSS but who have been living in the UK by 31 December 2020 will either be refused permission to enter and removed from the controlled zone or granted Leave to enter outside the Rules for 28 calendar days
  • LOTR must be granted to individuals who hold a valid (i.e. current) document issued by the Home Office under EEA Regulations 
    
  • Otherwise, LOTR should be granted where it would be disproportionate to refuse it (generally where there is satisfactory evidence the individual was living in the UK by 31 December 2020)

Travel documents 

• Since 1 October 2021, a valid national identity card will only be accepted for travel from EEA nationals who:
  • hold settled or pre-settled status under the EUSS
    
  • hold an EUSS family permit
  • have a pending valid application to the EUSS
  • hold a frontier worker permit
  • are a Swiss national and hold entry clearance as a Service Provider from Switzerland
  • are an S2 healthcare visitor

E-Gates and entry stamps 

• EEA nationals can use the e-Gates if they have permission to enter/remain
• EEA nationals over the age of 12 can use e-Gates if they have a biometric passport, even where they do not have existing permission to enter or remain in the UK. They must be accompanied by an adult if they are under the age of 18
• If the EEA national does not have existing permission to enter/remain they will automatically obtain permission to enter for six months
• EEA nationals will require an entry stamp (and so should not use the e-Gates) where they are seeking entry:
  • As a creative worker visa concession Certificate of Sponsorship holder
    
  • To take part in Permitted Paid Engagements 

Qualifying British Citizens (QBCs) (“Surinder Singh” cases)

• QBCs are British citizens who, by virtue of living in another EEA country with their non-EEA spouse and/or dependants, gained free movement rights under European law.  These were known as ‘Surinder Singh’ cases after the precedent legal ruling.  Since Brexit brought an end to freedom of movement for the UK, QBCs and their family members needed to establish their relationship and free movement rights by 31 December 2020.
• Most family members of QBCs were required to return to the UK by 11pm on 31 December 2020.  If they did not, then they may be refused entry. 
• The family members affected by this are:
  • The QBC’s spouse/civil partner (or child or dependent parent of spouse/civil partner), where the marriage or civil partnership was formed after 11pm on 31 January 2020 (unless they were in a durable partnership prior to that date)
    
  • The durable partner of a QBC where the relationship was formed after 11pm on 31 January 2020
  • The dependent relative of a QBC or their spouse/civil partner 
• In all other cases, family members of QBCs may apply for an EUSS family permit in order to return to the UK with the QBC at any time before 11pm on 29 March 2022 
  
• Late applications may be accepted if there are reasonable grounds as to why they missed the deadline  

Frontier workers

• From 1 July 2021 frontier workers must hold a frontier worker permit to enter the UK. This may be digital or a physical document
• Family members of frontier workers are eligible to apply to the EUSS. If they were not resident in the UK by 30 December 2020 they must obtain EUSS status or a family permit before they travel to the UK, unless they are a non-visa national intending to remain for six months or less

Acquiring EEA nationality after 31 December 2020

• If a person acquires EEA nationality after 31 December 2020 and wishes to establish their right to live in the UK under the EUSS, they will need to show that they were living in the UK as an EEA national or as the relevant family member of an EEA national by 31 December 2020.   

As will be clear from the points above, the status of EEA nationals and their family members may not always be straightforward.  Any individuals who have not applied for or obtained status under the EUSS should be aware that they may face questioning at the UK border. If you, or any of your family members, are concerned about your ability to enter and remain in the UK, then our team of specialised immigration lawyers would be happy to advise you.