What is the ‘grace period’ for EU citizens?
The UK left the EU at 11pm on 31 January 2020. However, from this date until 11pm on 31 December 2020, there was an implementation period (or transition period) during which EU free movement continued to apply and EU citizens and their family members continued to benefit from it.
EU free movement rules were brought to an end in the UK at 11pm on 31 December 2020.
However, this also signalled the beginning of the ‘grace period’ which lasts until midnight on 30 June 2021. During this period, any person who was lawfully resident in the UK by virtue of EU free movement law who does not yet have status under the EU Settlement Scheme continues to have their right of residence protected, albeit now under domestic law: The Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020.
Who does the grace period affect?
The grace period is aimed at protecting EU citizens and their family members who were lawfully resident in the UK by virtue of EU free movement law at 11pm on 31 December 2020. It allows them to continue to live in the UK and gives them additional time to make applications under the EU Settlement Scheme for ‘pre-settled status’ or ‘settled status’.
The deadline to make this application is at the end of 30 June 2021.
The grace period also protects some EU citizens and their family members who were resident in the UK by 31 December 2020 but were not residing lawfully in accordance with EU free movement laws.
This anomaly is due to the fact that EU citizens do not need to show that they have been exercising Treaty rights in order to be eligible under the EU Settlement Scheme. This means that students and self-sufficient people without Comprehensive Sickness Insurance (CSI) can continue to live in the UK and make applications under the EU Settlement Scheme.
Their unlawful presence in the UK will be tolerated up until 30 June 2021 and they are encouraged to make applications to the EU Settlement Scheme. During the grace period there will be no changes to their rights or entitlements and there will be no changes to third party checks of lawful status, such as those by employers.
What happens at the end of the grace period?
EU citizens and their family members who do not have pre-settled status or settled status and have not made any application to the EU Settlement Scheme by the end of the grace period will remain unlawfully present in the UK.
However, from 01 July 2021 their presence will no longer be tolerated and they will be subject to the ‘hostile environment’. This means they will be at risk of detention and removal; and their ability to work, study, rent property, obtain healthcare, receive public funds, use a bank account and even drive a car could be affected.
Therefore it is of vital importance that applicants apply before this deadline of 30 June 2021.
Those who have made a valid application in time but do not yet have a decision when the grace period ends will continue to be treated as if they are residing in the UK lawfully in accordance with the EEA Regulations until a decision is made or an appeal is finally determined. It is unclear how they are able to prove that they are lawfully resident to third parties.
Crucially, they will only continue to be treated as residing lawfully after the grace period ends if they were residing in the UK lawfully by 31 December 2020.
For example, a self-sufficient person who was residing in the UK without CSI before 31 December 2020, who has made an application for pre-settled status before the deadline which has not yet been decided by the end of the grace period, may still be subject to hostile environment measures up until they are granted leave to remain.
What if I miss the grace period deadline?
There is growing concern that many people will miss the grace period deadline and lose their rights of residence on 01 July 2021, with disastrous consequences. Some organisations have warned that this will be the next ‘Windrush’ scandal.
Vulnerable individuals are likely to need support in making their applications. Furthermore, certain applications, such as those relying on ‘Zambrano’ rights of residence, ‘Surinder Singh’ rights or derivative rights, are more complex than others and may require a significant amount of evidence. The Covid-19 pandemic has also caused delays and difficulties obtaining evidence.
The government has said that it will accept late applications where there are ‘reasonable grounds’ for failing to meet the grace period deadline and it is made within a ‘reasonable’ time period after this. Examples are given of children, people in abusive relationships and those that lack physical or mental capacity to apply. The Home Office is preparing non-exhaustive guidance on what constitutes ‘reasonable grounds’ but this has not yet been published.
JCWI has conducted research focusing on care workers, which shows that concerns about missing the deadline go beyond those recognised to be ‘at risk’ or vulnerable. Their research found that there were ‘worryingly low levels of awareness of the scheme and dangerously low levels of support for those who need it’ among care workers. This is indicative of the situation for many other workers, ‘particularly those in low-paid, difficult, or exploitative work’.
Hopefully the government will adopt a flexible approach to late applications. However, those who are eligible for leave to remain under the EU Settlement Scheme who have not yet applied, should do so as soon as possible.
Contact our EU Settlement Scheme Lawyers
To discuss your EU Settlement Scheme application with one of our immigration barristers, contact our EU Settlement Scheme lawyers on 0203 617 9173 or complete our enquiry form below.