As we have explained in previous articles, the deadline for EU citizens and their family members who are living in the UK to apply for limited leave to remain (pre-settled status) or indefinite leave to remain (settled status) under the EU Settlement Scheme ('EUSS') is 30 June 2021. Failure to apply before this date will mean that a person is in the UK unlawfully.
A different deadline may apply for those that are not resident in the UK.
EU Settlement Scheme Application Deadlines
Applying for Settled Status as the holder of Pre-Settled Status
Where a person holds limited leave to remain under Appendix EU, they must apply for further leave before this expires. Holders of pre-settled status should ensure that they will have a continuous qualifying period of 5 years residence so that they will be able to apply for settled status. If continuous residence is 'broken', they will have to apply for leave to remain on an alternative basis.
Joining family members
Joining family members will first need to apply for an EU Settlement Scheme Family Permit, from outside the UK, in order to enter the UK. This will be valid for four months. There is no deadline to apply for an EU Settlement Scheme Family Permit.
A joining family member, who arrived in the UK on or after 01 April 2021, will need to apply for leave to remain under Appendix EU within 3 months of the date of their arrival to the UK.
For applications made by family members before 30 June 2021, the application must be sponsored by an EEA citizen resident in the UK, who is eligible for leave to remain under Appendix EU. For applications made after this date, the Sponsor must have already been granted leave to remain under Appendix EU.
Spouse or civil partner or a Swiss Citizen
Where the applicant is the spouse or civil partner of a Swiss Citizen and the marriage was contracted or the civil partnership formed, after 31 December 2020 and before 01 January 2026, and they arrived in the UK on or after 01 April 2021, the deadline to apply for leave to remain is within 3 months of their arrival to the UK. The application must also be made before 01 January 2026.
Children of a relevant Sponsor, born in the UK on or after 01 April 2021
The deadline will be within 3 months of the date on which the child was born or adopted in the UK.
Historic continuous qualifying period of 5 years
EU citizens and their family members currently outside the UK may be eligible for Settled Status, if they have already completed a continuous qualifying period of 5 years residence in the UK prior to 30 December 2020 and have not been absent from the UK for a period of more than 5 consecutive years since doing so. The deadline to apply is 30 June 2021.
Existing leave to enter or remain
A person with existing limited leave to enter or remain under another category of the Immigration Rules is not required to apply to the EUSS until just before their existing leave expires.
Those who already hold indefinite leave to remain are not required to apply to the EUSS, but may do so if they wish by 30 June 2021.
Reasonable grounds for failure to meet the EU settlement scheme deadline
Late applications in any of the above cases may be accepted for an indefinite period where there are reasonable grounds for failing to meet the applicable deadline.
The applicant should apply with reasons for failing to meet the deadline. Caseworkers are instructed to 'take a flexible and pragmatic approach to considering, in light of the circumstances of each case, whether there are reasonable grounds for the person's failure to meet the deadline' and to give applicants 'the benefit of the doubt' in considering this. This could include cases where the applicant was unaware of the need to apply to the EU Settlement Scheme (see below).
If a person is encountered by Immigration Enforcement after 30 June 2021, and it appears to the office that the person would have been eligible for status under the EUSS had they applied by the applicable deadline, the person will be given a written notice giving them 28 days to make a valid application under Appendix EU. During this period no enforcement action should be taken.
The Home Office guidance gives non-exhaustive examples or circumstances which may be considered to be reasonable grounds for a late application:
Where a parent, guardian or Local Authority has failed by the relevant deadline to apply to the EUSS on behalf of a child under the age of 18, including where they are now an adult. There is no need to consider the reasons for failure to apply by the deadline.
Physical or mental capacity and/or care or support needs
A person who lacks physical or mental capacity to apply to the EUSS, or has other relevant care and support needs affecting their ability to apply, will usually be able to make late applications or have these made by third parties on their behalf, by providing evidence relating to their mental or physical health.
Serious medical condition or significant medical treatment
A serious medical condition or significant medical treatment around the deadline would normally constitute 'reasonable grounds' for late applications. This could include pregnancy or maternity.
Victim of modern slavery
A person who has been the subject of a positive reasonable grounds or conclusive grounds decision, or a person who provides information with their application suggesting that they may be a victim of modern slavery, may be able to make a late application to the scheme.
Abusive or controlling relationship or situation
A person will normally have reasonable grounds to make a late application if they were prevented from applying as they are or were a victim of domestic violence or abuse. A flexible and pragmatic approach should be taken to any evidence submitted in support of this.
Other compelling practical or compassionate reasons
This provision accepts that there may be other reasons to accept a late application. This could include where the person was unaware of the requirement to apply or was unable to apply in time due to lack of internet access or poor literacy. The covid-19 pandemic is explicitly referred to as a reason which may have prevented a person from being able to apply, for example if they were unable to obtain evidence of identity or nationality, access support services, or gather other evidence.
Ceasing to be exempt from immigration control
A person who was exempt from immigration control and continued to be exempt beyond the 'deadline' can make a late application. They will have 90 days from the date on which they cease to be exempt, to apply to the EUSS.
Document or status under the EEA Regulations
The Home Office accepts that a person who holds a residence document issued under the EEA Regulations with an expiry date later than 30 June 2021 may not realise they need to apply for leave to remain under the EUSS to remain in the UK after this date, and this can constitute reasonable grounds for making a late application.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.