Non-Eu child of primary carer with EUSS limited LTR

[Vennie001]

I have been granted EUSS limited leave to remain as my first son is an Irish Citizen. However, my second son, a non-Eu citizen, has been in the UK since December 2021 and applied to the EUSS. This application has been refused because he was not in the UK before 31st December 2020.
He came to the UK with a visitor visa and applied on the basis that in October there was a policy allowing joining family members to enter the UK with a visitor visa and apply to the EUSS. I also may have interpreted this wrongly.
Please advise me on what to do.

[secret.simon]

For a start, how old is the second non-EU citizen son?

Also, can you link to any document or website that made you think that an application in October 2022 would be valid?

[Vennie001]

Thanks for your response. My second child is 16 years old. I can't find the link but it was that from 6 October 2021 the Immigration Rules will allow family members, as defined under the EU Settlement Scheme (‘EUSS’), who are in the UK as a visitor to make an application under the EUSS from within the UK. This was as a concession at the time of their entry.

[kamoe]

I have been granted EUSS limited leave to remain as my first son is an Irish Citizen. However, my second son, a non-Eu citizen, has been in the UK since December 2021 and applied to the EUSS. This application has been refused because he was not in the UK before 31st December 2020.

Can you share the exact text of the refusal?

[Vennie001]

Hi Kamoe,

Apologies for the late response. Please find the reason for refusal below:

Reasons why your application has been refused

We have considered whether you meet the requirements for settled status (also
known as indefinite leave to enter or remain) or pre-settled status (also known
as limited leave to enter or remain) under the EU Settlement Scheme.
Unfortunately, based on the information and evidence provided or otherwise
available, and for the reasons set out in this letter, you do not meet the
requirements.
To qualify under the scheme you need to meet the requirements that are set out
in Appendix EU to the Immigration Rules. You can find out more about the
requirements here www.gov.uk/settled-status-eu-citizens-f ... ligibility.
You have applied under the EU Settlement Scheme as a “dependent person
with a Derivative right to reside”. However, you are unable to qualify on this
basis because a person only has such a right to reside if they were resident in
the UK on that basis at 23:00 GMT on 31 December 2020. You have stated in
your application form that you only started living in the UK with a Derivative right
to reside in 2021. Furthermore, you have stated at entry clearance for your most
recent visit visa that you only first entered the UK in April 2021 and there is no
documentary evidence that you have resided in the UK prior to 31 December
2020.
As there is no evidence or information provided with your application or
otherwise available that you had a right to reside in the UK at 23:00 GMT on 31
December 2020, you do meet the definition of a person with a “Derivative right
to reside” and your application under the EU Settlement Scheme cannot
succeed, consequently no further consideration has been given to your
application.
It is considered that the information available does not show that you meet the
eligibility requirements for settled status set out in rule EU11 of Appendix EU to
the Immigration Rules or those for pre-settled status which are set out in rule
EU14 of that Appendix. Therefore, you have been refused settled status and
pre-settled status under rule EU6.

[kamoe]

You have applied under the EU Settlement Scheme as a “dependent person with a Derivative right to reside”. However, you are unable to qualify on this basis because a person only has such a right to reside if they were resident in the UK on that basis at 23:00 GMT on 31 December 2020.

I'm afraid this is correct. The requirements for qualifying as such, according to Annex 1 to Appendix EU, under the definition of 'person with a derivative right to reside', subparagraph d) which addresses the cases of dependents under the age of 18:

(d) resident for a continuous qualifying period in the UK which began before the specified date and throughout which the following criteria are met:
(i) they are not an exempt person; and
(ii) they are under the age of 18 years (unless they were previously granted limited leave to enter or remain under paragraph EU3 of this Appendix as a person with a derivative right to reside and were under 18 at the date of application for that leave); and
(iii) their primary carer meets the requirements of sub-paragraph (a) or (c) above; and
(iv) the primary carer would in practice be prevented from residing in the UK if the person in fact left the UK for an indefinite period; and
(v) they do not have leave to enter or remain in the UK, unless this:
(aa) was granted under this Appendix; or
(bb) is in effect by virtue of section 3C of the Immigration Act 1971; or
(cc) is leave to enter granted by virtue of having arrived in the UK with an entry clearance in the form of an EU Settlement Scheme Family Permit granted under Appendix EU (Family Permit) to these Rules on the basis they met sub-paragraph (a)(ii) of the definition of ‘specified EEA family permit case’ in Annex 1 to that Appendix; and
(vi) they are not subject to a decision made under regulation 23(6)(b), 24(1), 25(1), 26(3) or 31(1) of the EEA Regulations, unless that decision has been set aside or otherwise no longer has effect

According to the first line above d) your son does not meet the criteria.

He came to the UK with a visitor visa and applied on the basis that in October there was a policy allowing joining family members to enter the UK with a visitor visa and apply to the EUSS. I also may have interpreted this wrongly.

The provision to come to the UK after December 2020, and to be able to apply while on a visitor visa, is for 'joining family member of a relevant sponsor', which only includes spouses, partners, children, and dependent parents of a relevant EU sponsor, or of their spouse or civil partner. According to the definition in same document as above:

a person who has satisfied the Secretary of State, including by the required evidence of family relationship, that they are (and for the relevant period have been), or (as the case may be) for the relevant period (or at the relevant time) they were:
(a) the spouse or civil partner of a relevant sponsor, and
(i)(aa) the marriage was contracted or the civil partnership was formed before the specified date; or
(bb) the applicant was the durable partner of the relevant sponsor before the specified date (the definition of ‘durable partner’ in this table being met before that date rather than at the date of application), and the partnership remained durable at the specified date; and
(ii)(aa) (unless the applicant relies on meeting condition 1 or condition 3 of paragraph EU11A of this Appendix, or on being a family member who has retained the right of residence by virtue of a relationship with a relevant sponsor) the marriage or civil partnership continues to exist at the date of application; or
(bb) (where the applicant relies on meeting condition 1 of paragraph EU11A of this Appendix) the marriage or civil partnership existed for the relevant period; or
(cc) (where the applicant relies on meeting condition 3 of paragraph EU11A of this Appendix) the marriage or civil partnership existed immediately before the death of the relevant sponsor; or
(b) the specified spouse or civil partner of a Swiss citizen; or
(c) the durable partner of a relevant sponsor, and:
(i) the partnership was formed and was durable before the specified date; and
(ii)(aa) (unless the applicant relies on meeting condition 1 or condition 3 of paragraph EU11A of this Appendix, or on being a family member who has retained the right of residence by virtue of a relationship with a relevant sponsor) the partnership remains durable at the date of application; or
(bb) (where the applicant relies on meeting condition 1 of paragraph EU11A of this Appendix) the partnership remained durable for the relevant period; or
(cc) (where the applicant relies on meeting condition 3 of paragraph EU11A of this Appendix) the partnership remained durable immediately before the death of the relevant sponsor; or
(d) the child or dependent parent of a relevant sponsor, and the family relationship:
(i) existed before the specified date (unless, in the case of a child, the person was born after that date, was adopted after that date in accordance with a relevant adoption decision or after that date became a child within the meaning of that entry in this table on the basis of one of sub-paragraphs (a)(iii) to (a)(xi) of that entry); and
(ii) continues to exist at the date of application (or did so for the period of residence relied upon); or
(e) the child or dependent parent of the spouse or civil partner of a relevant sponsor, as described in sub-paragraph (a) above, and all the family relationships:
(i) existed before the specified date (unless, in the case of a child, the person was born after that date, was adopted after that date in accordance with a relevant adoption decision or after that date became a child within the meaning of that entry in this table on the basis of one of sub-paragraphs (a)(iii) to (a)(xi) of that entry); and
(ii) continue to exist at the date of application (or did so for the period of residence relied upon)

Your son does not meet the above definition either, because siblings are not in the list of qualifying family relationships; and because you as their primary carer/parent are not a EU relevant sponsor.

[secret.simon]

@kamoe, the OP may have misinterpreted this guidance from June 2022, which allowed Zambrano primary carers under certain conditions to regularise their status under the EU Settled Status in a six week period between June and July 2022.

I could not get my head around what precisely was the concession that was allowed in those six weeks, but (a) it only applied to Zambrano primary carers, and (b) only for applications made in those six weeks.

To the OP, I concur with @kamoe. The requirements for any EUSS applicant to have been resident in the UK before 31st December 2020 has been there in the EU Settled Status Scheme from the start. And the only people who can sponsor their joining family members who were not resident in the UK on that date are EEA citizens already resident in the UK on that date and their spouses. Zambrano carers and other categories, such as unmarried partners of EEA citizens, can't sponsor their family members who were not resident in the UK on the 31st December 2020.

At the moment, your 16 year old child is an overstayer in the UK.

[kamoe]

@kamoe, the OP may have misinterpreted this guidance from June 2022, which allowed Zambrano primary carers under certain conditions to regularise their status under the EU Settled Status in a six week period between June and July 2022.

Right. Thanks @secret.simon, that does add some more legal context I was not aware of.

I think the OP might have also seen a number of previous posts here that quote a specific section of the EU Settlement Scheme caseworker guidance related to joining family members, and how it's been repetitively established that 1) there is no time limit for these applicants to come to the UK, and b) they can apply whilst on a visitor visa. But then again, the OP's son does not meet the definition of a 'joining family member', unfortunately; so sadly those posts do not apply to their case.

[Vennie001]

Thank you all for your response. I really appreciate what you do here. Do I have any other options available?