This fact sheet provides an explanation of the arrangements for securing the rights of looked-after children/care leavers who are currently in the UK under EU legal rights, following the vote for the UK to leave the EU.
To view more information on EU law rights, including general information on the settlement scheme and information for those with derivative rights, click here.
Please note that, for ease of reference, we are using the terms EU and EU citizens, but these terms will also cover rights of citizens of EEA and Switzerland unless specifically stated otherwise.
What EU rights can children and young people hold?
Direct family members
Children who are in the UK with EU rights will usually have come to UK with, or to join, an EU parent/step-parent, who has moved from their own EU Member State to the UK to work, to be self-employed, to study or to be self-sufficient. Such EU nationals, who are described as ‘qualified persons’ under the Immigration (EEA) Regulations 2016 (‘the EEA Regs – the UK’s version of the Citizens’ Directive EC 2004/38) have an associated right to be joined by their direct family members and those of their spouse/civil partner (who do not have to be EU nationals themselves).
Direct family members are: spouse/civil partners, children, step-children, grandparents and grandchildren. Children who join their direct family member in the UK keep their right to reside as a family member until the age of 21, even if they are no longer dependent on their family member.
If the relevant EU national has exercised Treaty Rights continuously for 5 years, they become permanently resident and so too do any direct family members under 21 who have joined them (even if estranged).
Some direct family members are not EU nationals themselves. These family members are not required to hold a physical document called a biometric residence permit (BRP) evidencing their EU status, although it is normally a good idea to get one for ease of referencing rights. To come to the UK, non-EU national family members need to apply for an EU family permit, and this should be converted to a BRP after entry. However, this is not a visa and is not granted under the immigration rules. Instead, it is documentary evidence of EU rights which apply by operation of law and exist regardless of documentation. This will continue to be the case during the transition period.
Extended family members
Children who are ‘extended family members’ (EFMs) are not in the same position as direct family members. EFMs must prove their dependence on their family member – their right to reside is lost if they are no longer dependent. Therefore EFMs who come into care no longer have rights as an EFM. EFMs are: durable (unmarried) partners, siblings, aunts and uncles, and other relatives.
They must also get a BRP to evidence their rights. EFMs do not have rights unless they hold the BRP and remain dependent on the relevant EU national. Therefore EFMs who come into care no longer have rights as an EFM, and their BRP will become invalid. However, they may be able to establish alternative rights.
Children/carers with derivative rights
Some young people hold EU derived rights of residence, for example as a person who is still in education, and who lived in UK at the same time as an EU national parent who was working at some point in the past. Other (non-EU national) children of carers with derivative rights, including ‘Zambrano’ carers, also have derivative rights.
It is normally important that the strongest EU rights are recognised where possible. For example, if the relevant EU national parent is still working, then there is a full right of residence, and the prospect of permanent residence, for the young person family member. This is stronger than an assumed derivative right, which are weaker rights.
Effect of a parent’s work on children’s EU rights
Some EU national looked after children will have lived in families where no-one has ever exercised Treaty Rights. In theory, these families have no right to reside in the UK. However, this will not affect their eligibility to apply under the EU settlement scheme.
Some children, or care leavers, will have been born in the UK to EU national parents who were exercising Treaty Rights and either were, or have since become, permanently resident. Such children may be British already OR may be entitled to register as British, for a fee, because a parent has got EU permanent residence. An entitlement to register as British normally only applies where the child has been born in the UK – other children have to register at discretion. A Passport Office policy guide on automatic British citizenship through EU rights is available here.
The rights that EU national children already had, or might have acquired under the EEA Regs, typically become hard to evidence when they go into care. The family history, and in particular the parents’ work activity in UK (which may have given rise to free-standing rights for the child), is often not explored or recorded, as it is not perceived as relevant. EU national care leavers are often advised that they have to become qualified persons themselves in order to have any rights, without any investigation into whether they might already be permanently resident, nearly so, or have rights in association with the relevant family member who brought them to UK.
What is the EU Settlement Scheme?
The EU settlement scheme (EUSS) is a new scheme which aims to secure the status, and to document, everyone who is in the UK under EU rights after the UK leaves the EU. The requirements to make an application under the EUSS are contained in Appendix EU to the Immigration Rules. The full scheme opened on 30 March 2019 and will be open until June 2021.
The EUSS can result in a grant of indefinite leave to remain under the EUSS (settled status) or limited leave to remain under the EUSS (pre-settled status). It is preferable to have settled status, which will only be given if 5 years’ residence in UK can be evidenced, because this is a more secure form of status and probably safeguards a person’s access to benefits.
The EUSS is a simplified scheme and it will generally be much easier to get residence rights under it than under the EEA Regs. The EUSS also provides an opportunity to get settled status/permanence for those
- whose parents have never exercised Treaty Rights
- who have derivative rights which under the EEA Regs do not lead to settlement (e.g. Zambrano)
- who ‘aged out’ as direct family members at 21 before they had achieved settlement under the EEA Regs.
Securing rights under the EUSS for looked after children
Step 1: get a passport / ID
The first step for looked after children wanting to rely on EU rights is to assist them to get a valid passport in their EU nationality. For some children and young people, this is far from easy as they may be completely estranged from their EU national parent. Many embassies will anyway not issue a first or renewal passport or identity document without the active involvement of both parents, in the absence of a court order. This can mean that it is imperative for the social worker to try to assist some dialogue and/or co-operation with the parent(s) to facilitate the issue of an EU passport to the child, where a child is looked after under section 20 Children Act 1989. Renewals of passports are sometimes easier, but will often still require involvement of at least one parent.
What if you can’t get a passport/ID?
The Home Office has acknowledged the problem with issue of passports to children and in the recent Statement of Changes to the Immigration Rules (7 March 2019) has included the following paragraph under the definition of ‘Required proof of identity and nationality’ for an application under the EUSS:
The Secretary of State agrees to accept alternative evidence of identity and nationality where the applicant is unable to obtain or produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons
A social worker’s full written explanation of the compelling practical difficulties encountered in accessing a passport/ID may be critical in persuading the Home Office that the required proof is met.
Step 2: get evidence of a child’s residence
A looked after child will often be making an application based on their own UK residence, rather than being ‘sponsored’ by an applicant parent. (Making an application tied to a parent’s application requires the child to have the parent’s unique application number and ID). Applications for children based on their own UK residence will have to rely on alternative evidence, as they will not have a DWP or HMRC record. A letter from a local authority stating how long a child has been in care – or how long the local authority has had contact with the child – will be crucial. Gathering other evidence of duration of residence from before a child came into care, for example from schools, is a task with which a child’s social worker can help.
Equally, the evidence as to the history of parents’ economic activities in UK – which can make the difference between a young person being given settled or pre-settled status – is frequently not available to the child or social worker, but could be unearthed if there is a legal case made to put the onus on the Home Office to take a pragmatic approach to the examination of their own records. It may be necessary to urge that the Home Office request an interdepartmental check of the tax or national insurance records of the parent(s) – in practice, it needs to be an accredited legal adviser putting the case for this, although a support letter from the social worker will be helpful.
Legal Advice and technical assistance
Who should not be making applications?
There is a question of who, rightly, should be advising and assisting looked-after children and young people to secure their rights. It has been suggested by the Home Office that local authorities are acting as parents to children under full care orders, and as such could apply as a parent could (free of the regulatory requirements). Migrant Children’s Project believes that this is not appropriate. An application under the EUSS is an immigration application, and as such advice should only be given by a regulated immigration adviser. This is particularly important where there might be youth offending or suitability/character issues, and/or a negative decision will have to be challenged or appealed.
Regardless of the regulatory concerns, the advice needs of looked after children and care leavers will almost certainly go beyond the EUSS to encompass advice on suitability, and nationality advice.
Who can make applications?
Applications for grant funding for regulated organisations to help vulnerable persons (LAC and care leavers are within this definition) with EUSS are under consideration by the Home Office currently, and support agencies will be expected to support applicants from April 2019.
Exceptional legal aid funding in immigration matters is available for any looked after child, but there might be some issues in locating a legal aid contract holder who is prepared to give advice and assistance in immigration/nationality law, because capacity in the legal aid sector is a big issue.
While care leavers’ immigration cases are not within the scope of legal aid, social workers can still make applications for legal aid (exceptional case funding) on their behalf, in order for a solicitor to be funded to represent them in complex cases. Any young person leaving care with unresolved status should have a plan for advice and assistance on these crucial identity issues written into their pathway plan.
Finally, the Home Office is also in the process of rolling out its ‘assisted digital’ centres (often based within council offices) – but this is only for help with the technical aspects of EUSS applications – these centres will not give advice. It is not expected that young people or their social workers will actually have a problem with the technology required to apply; their issues are more likely to be concerning a lack of ID documentation or patchy residence documentation.
It is common for young people and their social workers or foster parents to want to become (dual national) British – and to do so would often be in the young person’s best interests. Advice on nationality options and rights is a specialist legal area.
If the young person has been born in UK and lives here for ten continuous years, they will have an entitlement to register as a British citizen. These applications, while regulated work, are relatively straightforward. However, we would always advise some legal input, as some children may need to check that registering as British does not close down other dual nationality options (some countries will not grant nationality where the person already holds the nationality of another country).
There may be strong identity or practical reasons to secure a child’s EU nationality first, with documentation to prove it. Getting EUSS settled status through the Home Office accepting an assertion of an EU nationality status (for example, for a child for whom it is not possible to get a passport or ID) is not the same as getting acknowledgement direct from the EU Member State that the person is a citizen of their country.
An EU national child who was not born in the UK will have some sort of ID document from their own Member State, which will have been used to get them to the UK. Every effort should be made, when the child or young person comes into care, to get hold of the document used, even if expired. It may be the only evidence of their existing EU nationality. As an alternative, if the parent states that the document is lost (and/or they are unwilling to facilitate a replacement), a full history of the parents’ own nationality identities should be taken, including if possible a copy of the parent’s identity document. This is justified data retention, because without it the child or young person may be unable to evidence their birth nationality.
The problem may be perceived to be resolvable upon adulthood when a person can apply upon their own account for their EU passport and does not need parents’ involvement. If so, then it will be important that documents are kept that show that the EU nationality is already held as a first nationality. This will be particularly important if there is no entitlement route to register for British citizenship (not born in UK), and the young person has to register at discretion – which can only happen before a child turns 18.
There are advantages to being an EU national going forward that it will be important not to lose (such as free movement), as well as identity and cultural issues.
Equally, also becoming British prior to turning 18 is usually in a looked after child’s best interests, for educational purposes (for example being recognised as a ‘home student’ at university) and also for security and a sense of belonging. Most EU national children who have grown up in UK feel that they are, at least in part, British. And if the EU passport cannot be acquired until adulthood, the child will need a British passport in order to travel and go on school trips/holidays abroad or within EU. Children do not need to go through the same ceremonial requirements to gain citizenship and the application is cheaper (although at discretion, and with a character requirement, so specialist legal advice is needed)
Care leavers and continuing duties
A major issue in the past used to be right to reside for benefit purposes for EU national care leavers. Some care leavers were excluded from leaving care support under Schedule 3, section 3 of the Nationality, Immigration and Asylum Act 2002 as EU nationals with no rights under the EU Treaties (unless re-included by becoming qualified persons).
The EUSS should make the situation much clearer for those care leavers who have been resident in the UK for 5 years and who are entitled to settled status under the EUSS.
Local authorities should be amending their Local Offer document issued to care leavers and published on councils’ websites – so that those care leavers towards whom the LA still has an advice and assistance duty up to the age of 25 can be made aware of the provisions – and can be offered assistance to prove residence flowing back into their time in care. This may be invaluable to any care leaver applying to become settled and needing to show a 5y precedent residence.
Family members now over 21 who are not EU nationals can apply for settled status under the EUSS using the BRP issued originally to them, even if it is expired, and they are estranged from the relevant EU national.
EU nationals who have already left care and now want to naturalise as British have to show that they have become settled in UK at least a year before they apply, and also have to demonstrate legal residence in UK for a period of years before that. It may be necessary to assess whether they had rights of residence as family members under the pre- EUSS legislation in connection with parents’ activities. Settled status under the EUSS only applies from the date when it was granted, and is silent as to legal residence status prior to the grant. In this circumstance, it will be helpful, as always, if a full picture of the family’s circumstances was taken when the young person was taken into care.