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LEGAL FRAMEWORK
LEGAL FRAMEWORK
The EUSS
Paragraph EU3 of Appendix EU (‘Requirements for limited leave to enter or remain other than as a joining family member of a relevant sponsor’) provides that an applicantwill be granted five years’ limited leave to enter (where the application is made outside the UK) or five years’ limited leave to remain (where the application is made within the UK) where:
• A valid application has been made in accordance with paragraph EU9;
• The applicant does not meet the eligibility requirements for indefinite leave to enter or remain in accordance with paragraph EU11 or EU12, but meets the eligibility requirements for limited leave to enter or remain in accordance with paragraph EU14; and
• The application is not to be refused on grounds of suitability in accordance with paragraph EU15 or EU16.’
Paragraph EU11 of Appendix EU (‘Persons eligible for indefinite leave to enter or remain as a relevant EEA citizen or their family member, or as a person with a derivative right to reside or with a Zambrano right to reside’) provides amongst other things that an applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, one of conditions 1 to 7 set out in the table under that paragraph is met.
The only condition in that table relevant to this case is condition 3, which is met when:
‘(a) The applicant:
is a relevant EEA citizen; or
is (or, as the case may be, for the relevant period was) a family member of a relevant EEA citizen; or
is (or, as the case may be, for the relevant period was) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
is a person with a derivative right to reside; or
is a person with a Zambrano right to reside; or
is a person who had a derivative or Zambrano right to reside; and
The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and
Since then no supervening event has occurred in respect of the applicant’
Paragraph EU14 of Appendix EU provides that an applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, condition 1 or 2 set out in the table under that paragraph is met.
According to that table, condition 1 is met when:
‘(a) The applicant is:
a relevant EEA citizen; or
a family member of a relevant EEA citizen; or
a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
a person with a derivative right to reside; or
a person with a Zambrano right to reside; and
The applicant is not eligible for indefinite leave to enter or remain under paragraph EU11 of this Appendix solely because they have completed a continuous qualifying period of less than five years; and
Where the applicant is a family member of a relevant EEA citizen, there has been no supervening event in respect of the relevant EEA citizen’
The term ‘continuous qualifying period’ is defined in Annex 1 to Appendix EU thus (insofar as is relevant to the appellant):
‘a period of residence in the UK and Islands…:
which, unless the person is a joining family member of a relevant sponsor, is a specified relevant person of Northern Ireland (or is the dependent relative of such a person) or relies on sub-paragraph (b)(i)(cc), (b)(i)(dd) or (b)(i)(ee) below, began before the specified date; and
during which none of the following occurred:
absence(s) from the UK and Islands which exceeded a total of six months in any 12-month period, except for:
(aa) a single period of absence which did not exceed 12 months and was for an important reason (such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting, or because of COVID-19); or
(bb) a single period of absence which did not exceed 12 months and which, although the absence was not originally for an important reason, is to be treated as being for an important reason as it exceeded six months because of COVID-19; or
(cc) (following a period of absence under sub-paragraph (b)(i)(aa) above because of COVID-19 or under sub-paragraph (b)(i)(bb) above) a second period of absence which did not exceed 12 months and was for an important reason (such as described in sub-paragraph (b)(i)(aa) above) which, save for caring for someone with a serious illness, was not because of COVID-19; where this is the case, the period of absence under this sub-paragraph exceeding six months will not count towards any period of residence in the UK and Islands on which the person relies; or
(dd) (following a period of absence under sub-paragraph (b)(i)(aa) above which, save for caring for someone with a serious illness, was not because of COVID-19) either a second period of absence which did not exceed 12 months and was for an important reason, where that reason was because of COVID-19, or a period of absence under sub-paragraph (b)(i)(bb) above; where this is the case, the period of absence under this sub-paragraph exceeding six months will not count towards any period of residence in the UK and Islands on which the person relies; or
(ee) a period of absence under sub-paragraph (b)(i)(aa), (b)(i)(bb), (b)(i)(cc) or (b)(i)(dd) above which exceeded 12 months because COVID-19 meant that the person was prevented from, or advised against, returning earlier; where this is the case, the period of absence under this sub-paragraph exceeding 12 months will not count towards any period of residence in the UK and Islands on which the person relies; or…
…
(iii)…and,
which continues at the date of application, unless…’
We have not recited the numerous exceptions then listed under subparagraph (c) as none are relevant to the appellant. They can be summarised briefly. The continuous qualifying period need not be continuing at the date of application if: it is of at least five years’ duration; the applicant has a right of permanent residence (or would have acquired such a right had the EEA Regulations not been revoked and the applicant had a reasonable excuse for not making an in time application); the period relates to a relevant EEA national or relevant sponsor (and certain conditions are satisfied); the applicant has indefinite leave to enter or remain in the United Kingdom; or the applicant is applying under specified provisions of Appendix EU (none of which apply to the appellant).