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Post Brexit: 'Family Member' - What if.....?
What if the family member is an EEA national themselves? 

A family member of an EEA national (or British Citizen) resident in the UK, who is themself an EEA national, will normally be able to rely on their own continuity of residence to apply for settled status. Otherwise they will need to rely on their EEA national relative's status.
They won't normally need to provide evidence of their family relationship to that person. 

But they will need to provide evidence if, for example, they are relying on that relationship with less than 5 years' continuous residence, or they are relying on a retained right of residence after that relationship has ended. 

What if the family member is a non EEA national?

Where the family member is not an EEA national themselves, and they don't have their own permanent residence status, (or don't have proof of it), the Home Office will check HMRC and DWP records, and - where necessary - other documentary evidence, to establish whether they do qualify as a family member of an EEA national (see below).  They will also need to provide evidence of their relationship to the EEA relative for the period in question.

What if the Family Member does not have 5 years' continuous residence?
A family member of an EEA National 
 will be eligible for settled status 
 
with less than 5 years’ continuous residence if:

  • They were the EEA national's family member at the point that the EEA National became eligible to apply for settled status with less than 5 years' residence as a "person who has ceased activity" (eligibility criteria on this page),
     AND
  • They are currently resident in the UK under the 'continuous residence' criteria

    OR

  • They were living in the UK as a family member of an EEA who has died
    AND
  • That EEA was working or self employed in the UK when they died
    AND
  • They are currently resident in the UK under the 'continuous residence' criteria

Example:

Khalifa from Senegal is resident in England on 31st December 2020. Last year his wife Lisette, French,  became permanently incapacited for work as a result of an industrial accident. Khalifa and Lisette were living together in the UK at the time. Even though Lisette had only been working for 18 months as a seamstress in the UK, she counts as a "person who has ceased activity" because of the industrial accident and both she and her husband are eligible for settled status on the EU Settlement Scheme.

Example:

Stovanka had been living in Wales for three years with her husband Georgi when sadly he died in December 1919.  Georgi had been working in the UK when he died. As she is still in Great Britain on 31st December 2020, and has remained continuously resident in the UK, she can apply for settled status despite not having been continuously resident for 5 years.


What if the Family Member's EEA national relative has died?
A non-EEA national family member of an EEA national who was continuously resident in the UK by 31st December 2020, continues to count as a family member for these purposes even after the EEA national has died, so long as the family member was continuously resident in the UK as their family member for at least a year immediately before their death.

A child of an EEA national who died will still count as a  family member so long as they were attending an educational course in the UK immediately before their EEA national family member died, and they continue to attend such a course.

Example:

Stefan is 16. His mum Lina (Lithuanian) had been ill for some time when she died in November 2020. Stefan is in 6th form college. He continues to retain his rights as a family member and will be eligible to apply for settled status.
What if they are no longer a family member of the EEA national?
A non EEA national can still count as a family member for these purposes even if they are no longer their family member so long as:
  • they were continuously resident in the UK by 31st December 2020 when their marriage or civil partnership ends; 
    AND
  • they were resident in the UK when it ended; 
    AND 
  • either:
(a) The marriage or civil partnership had lasted for at least 3 years and both members had been  continuously resident 
in the UK for at least a year while they were married / in the civil partnership; 
OR
(b) They have custody of a child of the EEA national; 
OR
(c) They have right of access to a child of the EEA national, where the child is under 18 and where a court has ordered that such access must take place in the UK; 
OR
(d) Their continued right of residence in the UK is "warranted by particularly difficult circumstances" (eg domestic violence or abuse) during the marriage or civil partnership.

Example:

Halima, Somali, divorced her husband Axram (who has a Dutch passport) in July 2020, following years of sustained abuse. They had been married for 6 years and been living in the UK for 5. Halima's family in Somalia have cut off all ties, Halima is rebuilding her life with a good support network in the UK so does not want to leave. She will retain her rights as a family member of an EEA national and will be eligible to apply for settled status.
What if the EEA national relative of the family member is no longer continuously resident in the UK?
If the claimant is a child of an EEA national, they continue to count as a family member of an EEA national (or of their spouse or civil partner) so long as they were attending an educational course in the UK immediately before their parent (or parent's civil partner or spouse) stopped living in the UK, and they continue to attend such a course.

This also applies to non EEA national family members if they are the parent with custody of such a child. This is where the child normally lives with them or does so part of the time; it includes both arrangements which have been agreed informally and those which are subject to a court order for determining with whom the child is to live and when.

Example:

Boris is 17. His Dad has returned to his home country of Latvia to care for his elderly Mum. Boris decided to continue his education in the UK and so continues to count as a family member of an EEA national, and will be eligible to apply for settled status or presettled status under the EU Settlement scheme, depending on how long he has been continuously resident in the UK by 31st December 2020.
What if their right to reside is a derivative right?
An EEA national whose right to reside under the pre Brexit rules is only though a "derivative right  (for example through being the primary carer of an EEA national child in education) should be able to rely on their continuous residence to apply for settled (or presettled)status. 
But non EEA national family members of EEA nationals whose right to reside is only through a derivative right will not be able to apply for 'settled status' under the EU Settlement scheme. However it appears they will have their rights to benefits protected while they keep their derivative right: according to the Statement of Intent:
"The ..derivative residence rights of primary carers (of EEA national children in education) will be protected for as long as the child requires the primary carer's presence to continue or complete their education".

We assume what this means is that once they lose the derivative right, eg when the child leaves education they will lose their right to claim benefits.

However it appears that, while they have the derivative right,  they will be able to apply for an immigration  status that might allow them to claim benefits: a government statement on May 16th 2018 stated:
"...provision will be made for them elsewhere in the Immigration Rules to apply for leave to remain in line with their current rights."





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