Updated Guidance on Late EU Settlement Scheme Applications
Our previous post summarised Home Office guidance on what counts as reasonable grounds for making a late application to the EU Settlement Scheme.
As of 16 January 2024, the Home Office guidance was updated again. This post focuses on updated guidance for those who did not realise they needed to make an application to the EU Settlement Scheme, and are now applying late. In particular, this affects those applying late because they had not realised that their residence document issued under EEA regulations is no longer valid.
Deadlines for EU Settlement Scheme Applications and the Possibility of Making a Late Application
The deadline for most applications to the EU Settlement Scheme was 30 June 2021. As set out in our earlier post, a different deadline applies in certain circumstances. In particular, for family members of EEA citizens arriving in the UK on an EU Settlement Scheme Family Permit after 01 April 2021, the deadline for making an application to the EU Settlement scheme is three months after their arrival in the UK (and before their permit expires).
Under the Withdrawal Agreement between the UK and the EU, if an applicant has reasonable grounds for failing to respect the initial deadline applicable to them, the Home Office must give them a further reasonable period of time to apply. The test set out in Home Office guidance is whether ‘on the balance of probabilities and based on all the information and evidence provided by the applicant or otherwise available’, they are satisfied that ‘at the date of application, there are reasonable grounds for the person’s delay in making their application under the EU Settlement Scheme’.
Since 09 August 2023, the Home Office has been taking a more stringent approach to assessing late applications under the EU Settlement Scheme. Home Office guidance now states that, ‘in general, the more time which has elapsed since the deadline applicable’ to a person under the EU Settlement Scheme, the ‘harder it will be’ for them to satisfy the Home Office that there are reasonable grounds for their delay in making their application.
The Home Office guidance sets out example scenarios likely to constitute reasonable grounds for a person’s delay in making their application. These example scenarios are summarised in our earlier post and still apply under the current guidance. The updated guidance goes on to explain the approach the Home Office will take to circumstances in which a person was unaware of their need to apply to the EU Settlement Scheme, as set out below.
Late Application Based on Lack of Awareness of the Need to Apply Earlier
The current Home Office guidance states that the fact that someone was unaware of the requirement to apply to the EU Settlement Scheme by the relevant deadline will, in itself, generally no longer be considered a reasonable ground for delay. However, as of 16 January 2024, the guidance accepts that there are certain circumstances in which a person may be held to have had a reasonable belief that they did not need to apply earlier to the EU Settlement Scheme.
The guidance indicates that caseworkers may take into account the following factors:
The Applicant Is a First-Time Applicant to the EU Settlement Scheme With a Residence Document Issued Under the EEA Regulations
A UK permanent residence document issued under EEA regulations is no longer valid in the UK; those with a permanent residence document issued under the EEA regulations need to apply for another type of leave, such as leave under the EU Settlement Scheme. A person with a documented right of permanent residence issued under the EEA regulations, who has not been outside the UK and Islands continuously for a period of more than five years since they were issued with their permanent residence document, is likely to meet the eligibility requirements for settled status under the EU Settlement scheme. However, in order to make a valid application to the scheme, it is necessary to show reasonable grounds for delay in the application.
Those with a residence document issued under EEA regulations may not have been aware that their document is no longer valid. The updated guidance lists having a residence document issued under EEA regulations as a factor that may contribute to a person having had a reasonable belief that they did not need to apply to the EU Settlement Scheme. If someone was unaware that their residence document issued under EEA regulations is no longer valid, this should be explained and evidenced in an application to the EU Settlement Scheme.
The guidance also indicates that if an applicant has an EEA national spouse, civil partner or durable partner, or other close family members who applied in-time to the EU Settlement Scheme, but believed that they themselves could rely on a residence document issued under the EEA regulations, this is another relevant factor that should be explained to evidence reasonable grounds for delay.
The Applicant Is a First-Time Applicant to the EU Settlement Scheme With Long Continuous UK Residence
The guidance suggests that if an applicant has long continuous UK residence identified by tax or benefits records, this can also point towards having reasonable grounds for delay in applying to the EU Settlement Scheme if applying for the first time.
The Applicant Has a Compliant Positive Immigration History
The guidance indicates that an applicant will be considered more likely to have had a reasonable belief that they did not need to apply earlier to the EU Settlement Scheme if they otherwise have a compliant positive immigration history.
The Applicant Has Received Incorrect Advice From an Employer or Landlord Regarding Their Right to Work or Rent in the UK
If an applicant has evidence that they were incorrectly told by their employer that they continued to have the right to work in the UK since 30 June 2021, or they have evidence that they were advised by their landlord that they continued to have the right to rent in the UK, this can be used as evidence that the applicant has reasonable grounds for delay in making their application.
The Applicant Has Travelled in and Out of the UK Since 30 June 2021 Without Being Signposted to the Scheme
Having travelled in and out of the UK since 30 June 2021 without being signposted to the EU Settlement Scheme is another factor that may suggest an applicant had a reasonable belief that they did not need to apply earlier to the Scheme. If applicants have travelled into and out of the UK since the 30 June 2021 deadline without being signposted to the scheme, they should provide evidence of their travel, for instance by providing passport stamps and corroborating travel bookings.
Assessment of These Factors
The guidance suggests that if only one of these factors is present, this ‘may or may not be sufficient’ and that caseworkers will consider whether multiple factors are present. Cases must be considered ‘in the round’, in the light of their particular circumstances and the evidence provided.
The guidance emphasises that once a person became aware of their need to apply to the scheme, they should have applied without further grounds for delay, in order to be deemed to have reasonable grounds for making a late application overall. This means that it is very important for applicants to apply to the EU Settlement Scheme as soon as they can once they realise that they need to make an application.
Contact Our Immigration Barristers
If you think that you need to make a late application to the EU Settlement Scheme, it is important to seek legal advice and to ensure that your application is properly evidenced. This is particularly important as the Home Office guidance suggests that a restrictive approach will be taken to considering repeat applications to the Scheme.
For expert advice in relation to a UK visa application or immigration appeal, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
