Now that the election manifestos have been officially published we have an indication what Labour and Conservative have planned for EU nationals living in Britain.

While the Labour manifesto confirmed a pledge to immediately guarantee existing rights for all EU nationals living in Britain the polls continue to point to a Conservative win, with a manifesto that does not guarantee existing rights but seeks to ‘secure entitlements’. This wording suggests those who have yet to establish a “right of residence” will not be covered by the Conservative pledge.

In EU law, any EU national has the right of admission to another Member State and can physically remain in that Member State without breaching any immigration laws. However, only certain EU nationals acquire in EU law what is called a “right of residence”, which confers other rights including, eventually, the right to permanent residence.

We previously explained how, in EU law, a person can acquire that right of residence. Once that right of residence becomes permanent, the shape or form Brexit, and whether any EU laws remain, becomes irrelevant because permeant residence has been acquired as a matter of domestic UK law and that person’s residence is secure.

But what about EU nationals, or their family members, who do not yet have the “right of residence” and may not be able to secure it before Brexit is achieved? It is highly likely that some arrangements will be made, but we simply do not know. We explained the options under EU law but it is also prudent to be aware of the options available under UK immigration law. One such option is somewhat inelegantly named “Appendix FM”, which is the route for partners of certain residents to acquire residence themselves.

Who would consider using Appendix FM?

This option may be useful for the partner of either a British citizen or an EU national with permanent residence.  This EU national partner may not have worked in any capacity, or does not earn enough to satisfy the worker requirement and does not hold Comprehensive Sickness Insurance (‘CSI’) to satisfy the self-sufficiency route. Let’s look at one example, for this example we assume that negotiations for securing rights of residence for EU nationals have failed:

The Home Office’s recent statement has  softened the position for those without CSI:

EEA nationals will not be removed from or refused entry to the UK solely because they do not have CSI

While this is a nice sentiment, is not law and it does not confirm the right of residence Layla requires. Also, the Conservative manifesto suggests that Layla will not have a right that needs securing. Absent firm concessions during the Brexit negotiations, it does not solve the issue of a right to reside on a permanent basis for those who have not or cannot do so by the time we have ‘Brexited’ out of the EU.

In practice, it is likely that the position of these individuals will be negotiated upon during the UK’s exit. If not, however, Layla may need to consider applying under Appendix FM.

Position under UK law

Appendix FM allows permission to remain in the UK on the basis of their family life with a person who is either:

• British, or
• Settled in the UK, or
• Has refugee or humanitarian protection

This means that Layla who is in a relationship with Ben can apply under this route. This route is immensely complex and expensive, and beyond the scope of one blog post. But given recent interest in Appendix FM it is useful to explain the basics until such time that an ‘Appendix FM: Do it yourself guide’ is made available.

The main requirements are set out below.

Requirement one: suitability

The suitability requirements are a list of things that the Home Office will (“definitely”) or may (“almost certainly”) use to refuse an application.

The list of scenarios that attracts a definite refusal, at least at the application stage, includes those that are of serious concern to the Home Office. For example, a person with a conviction of at least 12 months’ imprisonment. The list of scenarios that would normally, which is another way of saying probably but not necessarily, be used to refuse an application are for example convictions which do not result in imprisonment or if a person failed to pay NHS charges of at least £500. These lesser issues may be overcome with good reasons.

Requirement two: eligibility

Once someone is considered “suitable”, the individual will need to ensure they meet the general eligibility requirements, these can be subdivided into the following categories:

1. Relationship requirements: the type of relationship that is covered within Appendix FM
2. Immigration status requirements: the type of immigration leave that the applicant holds
3. Financial requirements: whether the couple can financially support themselves to the level expected by the Home Office
4. English language requirements: if the applicant can speak English to a level acceptable to the Home Office

Relationship requirements

These cover the status of the partner, and what type of relationship the partner is in with the British, EU national or settled person. Included in this application are the following relationships:

• Married
• Civil partnership
• A fiancé(e) or proposed civil partner (due to be married or become civil partners within the next 6 months)
• A couple living together in a relationship akin to to marriage or civil partnership for at least 2 years prior to the date of application

There are requirements attached to the type of relationship, such as the age and future intention of the couple, which are generally easy to satisfy. A couple living together, akin to marriage, will require some pre-preparation because they would be required to prove the relationship with documentation in either their own or joint names for at least the 2-year period. So, such a couple should either look for documentation from the past or save future documentation should they want to consider Appendix FM in the future.

Immigration status requirements

Layla must not be in the UK as a visitor or have valid leave to remain granted for a period of 6 months or less. She must also not be in the UK on what is called Temporary Admission or Temporary Release. In our example, we would argue that Layla does not fall foul of any of these requirements. However, Layla must also not be residing in the UK in breach of immigration laws.  This raises a common question about whether a partner, who does not hold CSI, is in the UK in breach of immigration laws.

Under the Immigration Rules the term ‘in breach of immigration laws’ means without valid leave where such leave is required, or in breach of the conditions of leave. However, s 7(1) of the Immigration Act 1988 explains that leave to enter or remain in the UK under the Immigration Act 1971 is not required by a person who is entitled to enter the UK by virtue of EU rights.

An EU national therefore is entitled to enter the UK and is not a person who is in breach of immigration laws for the purposes of an application under Appendix FM. In our example above, Layla would satisfy this requirement.

Financial requirements

In this requirement, to bring Layla within UK immigration laws, Ben will need to be earning a gross annual income of at least £18,600 per annum to demonstrate that he can support Layla in the UK without a risk to the public purse. This level increases with each additional non-British child. This income can be derived from employment or self-employment, and other sources of allowable income.

There are many requirements concerning the length of time that this income must have been earned and how it should be evidenced, and is more suited to the ‘Do It Yourself Guide’, but it is worth noting at this point that this income would normally need to be earned for at least 6 months.

English language requirements

As Layla would have been living in the UK for some time, she may have already acquired a good level of the English language, but the Home Office will still require her to demonstrate this in her application, this means she will need to produce either a certificate confirming she has passed an English language test at a level, and by a provider approved by the Home Office or have an academic qualification at the minimum of Bachelor’s level either in the UK or, if obtained outside of the UK, meeting the recognised standards of the UK. This requirement, like the financial requirement, requires some foreplaning and is worth considering how one would satisfy it.

What can you do now?

We previously set out options on what can be done under EU law, and these should be considered first, but it is worth keeping in mind Appendix FM as a last option. We say last because it is a complex and expensive application process, but as Mrs May keeps reminding us we are in a stronger position if ensure all our cards available to play.