Katie Dilger

Change to the continuous residence requirement for settled status under the EU Settlement Scheme

14th July 2025 By Katie Dilger

A welcome change is being introduced to the continuous residence requirement for settled status under the EU Settlement Scheme. The change takes effect on 16 July 2025.

The EU Settlement Scheme allows qualifying EEA nationals and their family members to continue living in the United Kingdom post-Brexit. Broadly, under the Scheme individuals who have completed a continuous period of five years of residence are granted settled status (indefinite leave). Those with a shorter period of continuous residence are granted pre-settled status (limited leave).

Under the rules in place since the Scheme’s inception, continuous residence is broken if a person’s absences exceed six months in any rolling 12-month period. Absences longer than six months within a 12-month period are disregarded only in very limited circumstances.

As the Home Office has recognised [1], this strict definition of continuous residence has resulted in numerous EU citizens and their family members inadvertently breaking their continuous residence in the United Kingdom.

From 16 July 2025, the continuous residence requirement will therefore include a concession for those who have exceeded the current absence limit. Going forward, continuous residence will not be broken by absences of up to 30 months (2.5 years) in total within the five years prior to the date of the application.

As a result of these changes, many EEA nationals and their family members who were otherwise ineligible may find themselves able to meet the rules for settled status.

If you would like further advice on how the changes to the continuous residence requirement will affect you, or you wish to make an application for settled status, please feel free to contact us on 020 7401 6887 or by email at contact@gryklaw.com to arrange a consultation with one of our team.

References

[1] https://www.gov.uk/government/publications/statement-of-changes-to-/e-immigration-rules-hc-836-24-june-2025/explanatory-memorandum-to-the-statement-of-changes-to-the-immigration-rules-hc-836-24-june-2025-accessible

The ongoing issue of sole responsibility

11th July 2024 By Katie Dilger

For well over 60 years, the immigration rules have contained the “sole responsibility” rule. This states that, where a child is seeking to join just one parent in the UK, the UK-based parent must have “sole responsibility” for the child. The rule applies to most immigration categories that provide for children, including the rules for the non-British children of British citizens and the dependents of Skilled Workers.

Home Office guidance states that:

“Sole parental responsibility means that one parent is unknown or has abdicated or abandoned parental responsibility, and the other parent is exercising sole control in setting and providing the day-to-day direction and care for the child’s welfare.”

In the absence of sole responsibility, there must be “serious and compelling reasons” for a child to be granted leave to join just one parent. Broadly, the long-standing guidance on this said that the circumstances had to be exceptional when compared to other children living in the relevant country, i.e., a very high test.

These rules cause issues for many families, including separated parents who co-parent and those who move to the UK to start work and set up the family home before their children apply to join them.

In October 2023, new guidance was published which applies to most immigration categories, save children falling under the family migration routes, i.e. the children and stepchildren of British citizens and settled people. The new policy supports the sole responsibility rule, but there is no reference to circumstances needing to be exceptional for there to be “serious and compelling reasons”. Instead, the guidance lists other factors that a caseworker should consider. These include whether there are good reasons why the other parent is not coming to the UK and parental consent.

Initially, the policy appeared to be a significant step forward. However, as yet, there appears to be little change in practice and refusals continue in reliance on factors that are said to indicate that serious and compelling reasons do not exist. Over the years, there have been various articles in the press which have highlighted the hardship that the rule causes and these have continued into 2024 as fresh generations find themselves in difficult situations.[1]

If you are affected by the sole responsibility rule and would like expert legal advice, please do not hesitate to contact us at enquiries@gryklaw.com or on 020 7401 6887.

[1] For example, see ‘Inhumane’ Home Office denying visas to children of migrant health workers | Immigration and asylum | The Guardian

Recent Issues with British Passport Applications

13th July 2023 By Katie Dilger

Since October 2022, many passport applications have been put on hold due to the case of R (Roehrig) v SSHD [2023] EWHC 31 (Admin). This was the case in which the High Court held that EEA nationals exercising free movement rights in the UK prior to 2 October 2000, but who had not been granted indefinite leave to remain, were not settled for the purposes of the British Nationality Act 1981. See our previous updates from March and April 2023.

The good news is that, following the British Nationality (Regularisation of Past Practice) Act 2023 coming into force on 29 June 2023, passport applications from this cohort are now being processed.[1] Applicants whose cases had been put on hold have already started to receive their British passports.

While this issue has, it seems, now been resolved, we are increasingly seeing British citizens who have a second nationality having their applications put on hold. This is due to HM Passport Office’s current policy on aligning names on foreign documents. The policy states:

“Customers may send us a passport application in a name that does not match their foreign documents. Unless it meets one of our exceptions, we expect customers to change the name on their foreign document, so it matches the name on their passport application, before they send their application to us.”

This policy catches out many British citizens who are dual nationals, but whose non-British passport is in a slightly different name. This includes those who have renewed their British passports several times before without previously encountering any issues.

HM Passport Office’s rationale for this is that it:

“Must protect the security of the British passport (by preventing, disrupting and identifying those who change their name to commit crime or avoid detection)
cannot accept documents that allow a customer to apply for a foreign passport, travel document or identity document in a different name”.

In many cases, an applicant will be able to remedy the situation by obtaining a new foreign passport in the same name as their British passport. However, this is not always possible or appropriate. HM Passport Office recognises this, and, in certain limited situations, it will issue a British passport where the holder also has a foreign passport in a different name. This includes where the other country imposes restrictions on name or gender changes or limits the number of characters that can be used in the name fields in a passport. HM Passport Office also recognises that there may cultural naming conventions which dictate how a name is written in a non-British passport. For example, some countries have rules on name order or requirements that a passport must show the family names of both parents. In these circumstances, HM Passport Office is likely to issue a British passport with an observation that the person also holds a second passport in a different name.

If you are affected by any of the issues addressed above and would like expert legal advice, please do not hesitate to contact us at enquiries@gryklaw.com or on 020 7401 6887.

[1] See NEWS AND UPDATES – prcbc

Fee-waivers for citizenship applications by children

9th June 2022 By Katie Dilger

The application fee for a child applying for citizenship is £1,012 and has been for some time. This fee applies to all nationality applications by children.

The £1,012 fee has been the subject of litigation over the last few years by the Project for the Registration of Children as British Citizens (PRCBC). The High Court in 2020 and the Court of Appeal in 2021 both found that the fee was unlawful as the Home Office had set it without having considered the best interests of children.

The Home Office has now reviewed the registration fee in light of its obligation to consider the best interests of children. Unfortunately, it has re-set the fee at £1,012. However, for the first time it has also introduced fee waivers for children’s citizenship applications from mid-June 2022.

To qualify for a fee-wavier, applicants and their families must show that they cannot afford the fee. The new Home Office guidance explains that this means that the applicant child and their parent(s) “do not have sufficient funds at their disposal, after meeting their essential living needs, to pay the fee”. Applicants and their families will need to submit fee waiver request forms together with supporting documentation. Under this new policy, fees will either be waived in full or required to be paid. There is no provision for fee reductions or partial waivers.

Some children, namely those who are looked-after by a local authority, will be exempt from paying a fee at all and will not be required to apply for a fee waiver. This exemption does not, however, apply to children in receipt of local authority support. They may still qualify for a fee waiver, but, as with other applicants, they will need to apply for one and the fee will only be waived if they show that they meet the affordability test.

The Home Office has released detailed guidance on the new fee waiver regime. This is available at Citizenship fee waiver for individuals under 18 caseworker guidance – GOV.UK (www.gov.uk)

If you require advice in relation to the above, we would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Automatic extension of leave – some good news

28th October 2021 By Katie Dilger

Clients often ask whether they can continue to work while an application is outstanding. The answer is generally yes, provided that they were permitted to work before and made a valid in-time application. This is because leave is automatically extended by law while an in-time application is pending.

Leave is also extended if the application is refused and the person submits an in-time appeal or application for administrative review. The person’s leave only falls away once the appeal rights or the administrative review is no longer pending.

When leave is extended in this way it is called “section 3C leave” after the provision of the Immigration Act 1971 which sets out the mechanism for leave to continue.

Section 3C leave is incredibly important because it keeps people here lawfully. It prevents a person from losing their job or an entitlement to access NHS treatment free of charge.

Earlier this year the Court of Appeal looked at what happens to section 3C leave when a person lodges an appeal out of time. For example, a person normally has 14 days to lodge an appeal against the refusal of an in-country application for leave as the partner of a British citizen. If the person who has section 3C leave lodges the appeal in time, their section 3C leave will continue while the appeal is pending. What the court looked at is what happens if the appeal is late.

The Court of Appeal concluded that section 3C resurrects from the date the appeal papers are lodged, provided that the Tribunal later grants the person extension of time for the lodging the appeal papers. In late October 2021, the Home Office updated its guidance to reflect this. This is available at 3C and 3D leave – GOV.UK (www.gov.uk).

This development may be very useful for individuals and families who have missed an appeal deadline but were previously lawfully present with section 3C leave. Provided the Tribunal grants the extension of time, they will become lawfully present again from the date the appeal papers were lodged. This does not, however, assist those who lodge late appeals and did not have section 3C leave at the date the application was refused.

If you require immigration advice in relation to the above, we can help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.