The UK’s departure from the EU on 31 January 2020 means that EU citizens and their family members in the UK must apply to the UK’s EU Settlement Scheme for a new immigration status to continue living in the UK after 30 June 2021.
The EU Settlement Scheme opened on 30 March 2019 and has so far processed more than 3 million applications. The deadline to apply to the EU Settlement Scheme is 30 June 2021.
This note addresses a recent development in the law relating to the EU Settlement Scheme which means that victims of domestic violence have increased protection and, in some cases, may be able to apply to the EU Settlement Scheme even if they have been advised they could not previously.
What has changed and when?
On 14 May 2020, the Home Secretary introduced changes to the rules of the EU Settlement Scheme which included significant new protections for victims of domestic violence and abuse.
These changes came into force on 4 June 2020. further information here
The Home Office’s explanation of the changes is as follows:
“To extend the scope for victims of domestic violence or abuse to apply for status under the EUSS. In line with the Withdrawal Agreement and the Free Movement Directive, this is currently limited to a former spouse or civil partner whose marriage or civil partnership has been legally terminated and who was a victim of domestic violence or abuse while the marriage or civil partnership was subsisting. Consistent with the Government’s wider commitment to tackling domestic violence or abuse and protecting victims of it, the changes will mean that any family member within the scope of the EUSS (a spouse, civil partner, durable partner, child, dependent parent or dependent relative) whose family relationship with a relevant EEA citizen (or with a qualifying British citizen) has broken down permanently as a result of domestic violence or abuse will have a continued right of residence where this is warranted by domestic violence or abuse against them or another family member. They will be able to rely on this, together with their own continuous residence in the UK, in applying for status under the EUSS;”
What do the rule changes mean?
The changes mean that a wider group of non-EU nationals who are current or former ‘family members’ of EU citizens will be eligible for immigration status under the EU Settlement Scheme.
‘Family members’ of EU citizens resident in the UK can qualify under the EU Settlement Scheme.
‘Family members’ are strictly defined as:
• spouse or civil partner
• children or grandchildren who are under 21
• dependent children or grandchildren who are 21 or over
• dependent parents or grandparents
• unmarried partner (also known as ‘durable partner)*
• other dependent relatives*
*Important: unmarried partners & other dependent relatives are only considered ‘family members’ under the EU Settlement Scheme if they have/ had an EU residence document issued by Home Office.
Prior to 4 June 2020, there were many instances where a ‘family member’ whose relationship with an EU citizen broke down due to domestic violence may have ceased to qualify for immigration status under the EU Settlement Scheme.
From 4 June 2020, the EU Settlement Scheme has been amended so that if a family member’s relationship with an EU citizen breaks down permanently as a result of domestic violence they can continue to qualify for immigration status under the EU Settlement Scheme.
What will victims of DV need to prove?
Those relying on the new protections will, in common with all other non-EU national applicants to the EU Settlement Scheme, need to prove:
• their own identity and nationality using a valid passport or UK biometric residence document (exceptions apply)
• their own residence in the UK
• their family relationship with an EU citizen
• the EU citizen’s identity and nationality (exceptions apply)
• the EU citizen’s residence in the UK before relationship breakdown
In addition, they will need to prove:
• their family relationship with the EU citizen has permanently broken down as a result of domestic violence or abuse.
The Home Office has yet to issue any guidance to applicants who are applying under this new route and so it remains to be seen how stringent the Home Office sets the bar with respect to evidence of domestic violence and relationship breakdown. VAWG professionals are likely to play a critical role in assisting women by providing letters of support.
The need for specialist legal assistance
Rights of Women considers applications under the new domestic violence protections of the EU Settlement Scheme are sufficiently complex to require legal assistance at OISC Level 2 or above.
It is important to ensure women access specialist legal assistance from a service provider that has expertise in VAWG related applications. The immigration rules are complex, this is an evolving area of law and we think it likely generalist immigration advisers will be unfamiliar with these changes for some time.
Rights of Women can provide free legal advice on these cases via our EU Settlement Scheme advice line which is open on Tuesdays and Wednesdays from 11am – 1pm and 2pm – 4pm on telephone number 020 7118 0267.
Rights of Women accepts a small number of cases for full representation, subject to capacity, and will prioritise cases affected by these new rule changes.
It is important to note that while the EU Settlement Scheme opened on 30 March 2019, these changes only commenced on 4 June 2020. The changes have retrospective effect. This means that a non-EU national family member of an EU citizen who was previously advised that they are ineligible under the scheme following relationship breakdown may now qualify if their relationship broke down as a result of domestic violence and should get updated advice.