Can you join a family member in the UK if they have pre-settled status or settled status under the EU Settlement Scheme?

Posted onJanuary 18, 2021

If COVID-19 has taught us anything then it is the importance of family and being able to see them and give them a hug. With the end of free movement for EU citizens the immigration team at OTS Solicitors are receiving questions about family reunification after Brexit after the end of the transition period on the 31 December 2020 such as applying for pre-settled status for family members and adding family members to Settled Status. What the enquirers understandably want to know is whether they’ll be subject to Immigration controls and if they’ll need entry clearance to come to the UK so that they can reunite with their family. In this article we look at your best immigration options if you want to join an EU citizen living in the UK with pre-settled status or settled status under the EU Settlement Scheme.

UK Immigration solicitors

If you have questions about moving to the UK to join an EU family member or questions about settled status and the EU Settlement Scheme call the immigration solicitors at London based OTS Solicitors on 0203 959 9123 or contact us online. Appointments can be arranged via video call, Skype or telephone.

Can you join an EU family member who is living in the UK?

You may be able to join an EU, EEA or Swiss family member who is living in the UK. Your route to do so will depend on when your family member arrived in the UK.

If your family member came to live and work in the EU after the end of free movement on the 31 December 2020 then they won’t meet the eligibility criteria to apply for pre-settled status under the EU Settlement Scheme. That’s because applicants for pre-settled status or settled status had to be living in the UK before the 31 December 2020 and if they weren’t, they’ll be subject to UK Immigration control and require a visa to live in the UK and entry clearance in the same way as a non-EEA national. Although your family member may not be eligible to apply for pre-settled status under the EU Settlement Scheme, if they have secured a visa from the Home Office you may be able to use their visa status to apply for a dependant visa if you meet the dependant visa eligibility criteria.

Applying to join a family member from the EU, EEA or Switzerland who started living in the UK before the 31 December 2020

The Immigration rules say that a family member can apply to join their EU, EEA or Swiss family member who is living in the UK provided that their family member started living in the UK before the end of free movement on the 31 December 2020.

The Immigration rules on your application depend on where you are from as they differ between EEA and non-EEA nationals. The rules say:

If you are from the EU, EEA or Switzerland, you can make an application to the EU Settlement Scheme from outside the UK if you hold a valid passport or an identity card with a biometric chip
If you are from outside the EU, EEA or Switzerland, you can make an application to the EU Settlement Scheme from outside the UK if you have an old applicable document such as a residence card, permanent residence card or a derivative residence card.

If you don’t have the right paperwork to apply to the EU Settlement Scheme from outside the UK you may be able to apply for an EU Settlement Scheme family permit. Once you have entered the UK on the relevant permit you may then be able to make your application under the EU Settlement Scheme.

Is there a deadline to apply for settled status as a family member joining an EU national who is living in the UK with settled status?

For people arriving in the UK to join family members under the EU Settlement Scheme rules there is a deadline to make your EU Settlement Scheme application if you enter the UK on or after the 1 April 2021. The Immigration rules say that you must apply to the EU Settlement Scheme within a three-month deadline of the date you arrive in the UK.

Which family members can apply to join an EU national living in the UK with settled status?

Understandably there are rules on which relations can join an EU, EEA or Swiss citizen as a family member to avoid non-dependant second cousins or other distant relatives making an application.

The rules cover relationships and family members. A relationship is defined as a relationship with a husband or wife or civil partner or unmarried partner. The relationship must have started by the 31 December 2020 and must still be in existence.

You can also apply to join an EU family member living in the UK if you’re related to the EU national or their spouse, or their civil partner and you are:

A child, grandchild or great-grandchild under twenty-one years of age or
A dependent child over the age of twenty-one
A dependent parent, grandparent or great-grandparent, or relative and you have paperwork to establish your relationship.

The Immigration rules say that you may also be able to make an application if:

You are the primary carer of a British, EU, EEA or Swiss citizen
You are the child of an EU, EEA or Swiss citizen who used to live and work in the UK, or you are the child’s primary carer
You are the family member of a British citizen and you lived outside the UK in an EEA country with one another
You are the family member of a British citizen who also has EU, EEA or Swiss citizenship and who lived in the UK as an EU, EEA or Swiss citizen before securing their British Citizenship
You used to have an EU, EEA or Swiss family member living in the UK
You are the family member of an eligible person of Northern Ireland.

Making an application as your family member is a British citizen

If you are making an application because your relative or family member is a British citizen then this is referred to as a ‘Surinder Singh’ application.

To potentially be eligible to make the application you must have lived outside the UK in an EU or EEA country or in Switzerland with your family member before the 1 January 2021 and be:

A husband, wife, spouse, civil partner or unmarried partner
Their child or grandchild and under the age of twenty-one
Their dependent child or grandchild and twenty-one years of age or older
Their dependent parent or grandparent or other dependent relative.

The Immigration rules say that:

The EU country or other relevant country that you resided in must have been your main residence and
Your British citizen family member must have been working, studying or been self-sufficient whilst living there with you.

As the Immigration rules on Surinder Singh applications can be complicated it is best to take specialist immigration legal advice before making your application.

Making a retained right of residence application if you used to have an EU, EEA or Swiss family member living in the UK before the 31 December 2020

You may be able to make an application, referred to as a retained right of residence application by immigration solicitors, if you used to have an EU, EEA or Swiss family member who was living in the UK by the 31 December 2020. The rules on eligibility and evidence can be confusing so if in doubt about whether you meet the eligibility criteria it is best to seek immigration legal advice.

Applying to the scheme if you are being educated in the UK

Different Immigration rules may apply to you if you are being educated in the UK and you were living in the UK before the 31 December 2020 and one of the following conditions applies to you:

You are the child of an EU, EEA or Swiss citizen who has left the UK or died
One of your parents is the husband, wife or civil partner of an EU, EEA or Swiss citizen who has left the UK or died
One of your parents was previously the husband, wife or civil partner of an EU, EEA or Swiss citizen who has left the UK or died.

One point to note is that if you qualify as a student to make the application your parent is also eligible to make an application if they have custody of you.

What happens if a family relationship has broken down?

You can make an application if your marriage or civil partnership to an EU, EEA or Swiss citizen was terminated by divorce or civil partnership dissolution provided that you lived in the UK when it ended and one of the following conditions applies to you:

The marriage or civil partnership lasted for at least three years and you were both living in the UK for at least one year during that time
You have custody of or the right of access to the EU, EEA or Swiss citizen’s child. The child must be under eighteen years old
You or a family member was the victim of domestic abuse in the relationship.

You can also apply if a family member had a relevant marriage or civil partnership and you lived in the UK when it ended and you are:

Their child, grandchild or great-grandchild and under twenty-one years old
A dependent child over the age of twenty-one
Their dependent parent, grandparent or great-grandparent or other dependent relative.

What documents are needed and when should an application be made?

The documents you will need to produce in support of your application will depend on the basis of your application. Likewise, the timing of the application and deadline date will depend on the basis for your application. As the Immigration rules are both complicated and dependent on your personal circumstances, immigration solicitors say its best to take expert legal advice on your best options.

UK Immigration solicitors

Our friendly specialist London based immigration solicitors can answer your EU Settlement Scheme questions and look at your immigration options. For the best advice on entry clearance to the UK call OTS Solicitors on 0203 959 9123 or complete our online enquiry form. Appointments are available through video conference, Skype or by telephone appointment.