The deadline to make an application to the EUSS where a relevant EU citizen was living in the UK by 30 December 2020 was 30 June 2021. However, late applications are being accepted where an applicant had reasonable grounds for missing the deadline and we explore this in detail.
EU Settlement Scheme
The EU Settlement Scheme (EUSS) was established to allow EU, EEA and Swiss citizens who were resident in the UK before the end of the transition period, 31 December 2020, and their family members to continue to live and work in the UK lawfully in the post Brexit era. For those eligible, an application should have been made before the end of the grace period, 30 June 2021.
Those who have made a successful application would have been granted settled or pre-settled status.
Where an EU applicant or their family member has resided in the UK for a continuous period of five years before 30 December 2020, they will be granted settled status. Those who have resided in the UK for less than five years will be granted pre-settled status. Where pre-settled status is granted, an applicant will be eligible to ‘upgrade’ their status to settled status once they have completed five years continuous residence in the UK.
In order to meet the continuous residence requirement an applicant should not have absences of more than 6 months in any 12-month period. There are certain limited exceptions to this and absences of up to one year in certain circumstances such as studying abroad will not break continuous residence. Pre-settled status will be lost if an individual has been outside the UK for a continuous period of two years.
Those who have submitted an in-time application and are still awaiting a decision have their existing EU rights protected pending a decision on their application.
EU Settlement Scheme: Late applications
For those who did not make an application by the deadline of 30 June 2021 there is still hope to make a late EUSS application for settled or pre-settled status where they can show that they were living in the UK by 30 December 2020 and have a “reasonable ground” for missing the deadline.
What is considered a reasonable ground for making a late application?
The Home Office have published case worker guidance setting out a list of circumstances that would constitute ‘reasonable grounds’ for late applications. It is important to note that the list is non-exhaustive and each application will be considered on a case by case basis. Some of the reasons that can be relied on include:
- where a parent, guardian or Local Authority failed to apply on behalf of a child
- where a person had a serious medical condition or was undergoing significant medical treatment which meant they were unable to apply by the deadline
- where someone is a victim of modern slavery or is in an abusive or controlling relationship
- where someone lacks physical or mental capacity or has care or support needs
- where a person was unable to apply by the relevant deadline for compelling practical or compassionate reasons
The guidance further specifies that a person being “unaware of the requirements to apply to the EU Settlement Scheme” may rely on this as a reason for a late application. In addition, those who have lived in the UK for a significant period of time and having done so did not realise they must still secure status under the EUSS may also be eligible to make a late application.
It will of course be important to provide as much information and supporting evidence to demonstrate the reasons for the late application as possible, in addition to providing evidence of the individual’s eligibility to make the application in the first place.
EU Settlement Scheme: Apply or not to apply?
Eligible EU citizens who have not applied to the EUSS to date, are living in the UK unlawfully and it may therefore be advisable to submit an application where an applicant is of the opinion that they meet the eligibility criteria and can provide an explanation for why they did not submit an application before the deadline.
“Eligible applicants should make a late application to the EUSS as soon as possible.”
It further states:
“The Home Office will take a flexible and pragmatic approach to accepting late applications and will look for reasons to grant applications, not to refuse them.”
It remains to be seen how flexible the Home Office will be with late applications and how many will be successful. However, in the interim Home Office caseworkers have been told to apply discretion in an applicant’s favour in deciding late applications. Further, the Home Office has recently clarified that “EEA and Swiss citizens and their family members who apply late to the EUSS will have their rights protected while their application is determined.”
Therefore, we encourage those EU nationals who may be eligible to apply to do so without further delay. It is not clear how long the Home Office will apply discretion, but it is noted that the guidance to caseworkers states:
“In general, the more time which has elapsed since the deadline applicable to the person under the scheme, the harder it will be for them to satisfy you that, at the date of application, there are reasonable grounds for their failure to meet that deadline.”
EU Settlement Scheme applications: How our immigration solicitors can help
We are experienced in advising individuals on EUSS applications and if you would like assistance with an application or if you would like to speak with one of the team please contact us, or complete the enquiry form below.
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