What Home Office consider when making an in-country curtailment decision for EU Settlement Scheme EUSS
EUSS scheme and EUSS Family Permit immigration permissions are a separate set of rules that has its own unique complexities. Circumstances of EUSS holders may change after their EUSS permit is granted. Such change(s) may impact on the immigration permission. Where Home Office is considering the cancellation (formally called curtailment) of EUSS limited leave or EUSS family permit leave to enter, Home Office must be satisfied that it is justified and proportionate to curtail that leave and they must provide their reasons in the decision letter.
False or misleading information, representations or documents being submitted in EUSS application
In considering curtailing EUSS limited leave or EUSS family permit leave to enter on the grounds of false or misleading information, representations or documents being submitted in an application, or in support of an application, Home Office must consider whether the false or misleading information, representation or documentation was material to the decision to grant the person that leave. Home Office must not curtail EUSS limited leave or EUSS family permit leave to enter if, regardless of the false or misleading information, representation or documentation the holder would otherwise be eligible for that leave.
Home Office must also only curtail leave if you consider that to be proportionate in all the circumstances. For further general information about false representations, see: Suitability: false representations guidance.
The person ceases to meet the requirements of Appendix EU
When considering curtailment on the basis that the person ceases to meet the requirements of Appendix EU, Home Office must assess whether the individual otherwise meets the requirements of Appendix EU. For example, if considering curtailing a person’s pre-settled status following their divorce from a relevant EEA citizen, it will be necessary to consider whether they nevertheless continue to meet the criteria in Appendix EU, for example on the basis of retained rights (as per the Appendix EU definition of a ‘family member who has retained the right of residence’).
Termination of marriage or civil partnership
Under Appendix EU, it is not required that a marriage or civil partnership be subsisting whilst a couple remain legally married, although it must not be a marriage or civil partnership of convenience. Home Office curtailment decisions must not be made on the grounds that a spouse or civil partner has separated from their relevant EEA citizen family member, if that marriage or civil partnership has not legally ended.
Before curtailing EUSS limited leave on the basis that the person ceases to meet the requirements of Appendix EU, Home Office must assess whether the individual, notwithstanding the divorce or dissolution, still satisfies the eligibility criteria under the Appendix EU. For example, under Appendix EU, they may have become eligible for settled status by virtue of having completed a continuous qualifying period of residence of 5 years as the spouse/civil partner of a relevant EEA citizen before the divorce / dissolution, or they may be eligible for pre-settled or settled status under the EUSS as a family member who has retained the right of residence, as defined in Appendix EU.
Home Office must also consider in all cases whether it is proportionate to curtail their leave in light of all the information and evidence available to them.
Marriage or civil partnership of convenience
If Home Office curtailment team receive a referral where a person or couple have taken part or attempted to take part in, or have assisted another person to enter or attempt to enter in to a marriage or civil partnership of convenience, Home Office can consider the relevant conduct to have started when they are confirmed to have first acted to gain an immigration advantage through the relationship, for example, this may be when they confirmed their intention to marry or form a civil partnership. It does not have to be when a relationship began, or when a marriage or civil ceremony took place. See ‘Marriage Investigations: determining when relevant conduct commenced’.
Right of appeal when EUSS status is curtailed
Where a curtailment decision is taken in respect of EUSS limited leave, or EUSS family permit leave to enter, a right of appeal will be triggered. Home Office must not automatically curtail an individual’s leave in the above situations because these reasons for curtailment are discretionary. In light of all the information and evidence available to Home Office, they must consider whether to exercise discretion. Where Home Office decide that curtailment is not appropriate, they must note that consideration has been given to curtailment and the reason for this.
Home Office must demonstrate why they are satisfied that curtailment is proportionate.
Liability to removal
Where EUSS limited leave or EUSS family permit leave to enter is curtailed, the person can appeal the decision. They do not have to leave the UK and will not be removed while they could bring an appeal or while their appeal is in progress, save for those whose removal has been certified under regulation 16 or 16A of the Citizens’ Rights Appeals Regulations. As a result, anyone (other than those whose removal has been certified under regulation 16 or 16A of the Citizens’ Rights Appeals Regulations) who has their EUSS limited leave or EUSS family permit leave to enter curtailed, will only become removable under section 10(1) of the Immigration and Asylum Act 1999 (as a person who requires but does not have leave to enter or remain in the UK) once they become Appeal Rights Exhausted (ARE). This means where no appeal has been lodged within the time frame for bringing an appeal, or if an appeal is lodged, where it has been finally determined.
National Returns Progression Command (NRPC) will need to take a separate decision on the person’s removal from the UK. If they remain liable to removal, NRPC must serve the person with a notice of liability to removal. This notice contains a section 120 notice which gives the person the opportunity to provide any reasons why they should be allowed to stay in the UK. Any such reasons must be considered and addressed prior to any removal action.
