The EU Settlement Scheme (EUSS) changes were announced by Home Office on 17/07/2023 in their Statement of Changes to Immigration Rules 17th July 2023. We addressed this in our blog on 17th July.

The new stricter rules on what can constitute good ground(s) for making a late EUSS application apply to applications under Appendix EU made on or after 9 August 2023.

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WHAT ARE THE 'REASONABLE GROUNDS' FOR DELAY IN MAKING EUSS APPLICATION?

To start on a positive note, it is good that Home Office acknowledges that there is scope indefinitely for a person eligible for status under the EU Settlement Scheme to make a late application to the scheme where, in light of all the circumstances and reasons, there are reasonable grounds for their delay in making their application.

Where a person who has failed to meet the deadline applicable to them wishes to apply to the EU Settlement Scheme on or after 9 August 2023, they must make an application under Appendix EU – online or on the relevant paper application form – and provide information and evidence with the application setting out their grounds for their delay in making their application.

In all cases, the relevant test is whether, on the balance of probabilities and based on all the information and evidence provided by the applicant or otherwise available, Home Office caseworker is 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. 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 Home Office, that at the date of application, there are reasonable grounds for their delay in making their application.

CIRCUMSTANCES WHICH WILL NOT GENERALLY CONSTITUTE REASONABLE GROUNDS FOR DELAY IN MAKING AN APPLICATION

Home Office EUSS Guidance specifically lists some circumstances that will generally not be considered as reasonable grounds for their delay in making their application under the EU Settlement Scheme. The EUSS Guidance states that this list is not exhaustive and every case must be considered in light of its particular circumstances and the evidence provided.

For example, a person may state that they were unaware of the requirement to apply to the EU Settlement Scheme by the relevant deadline or that they failed to make an application by that deadline because they had no internet access, limited computer literacy or limited English language skills. These will generally no longer be considered reasonable grounds for their delay in making their application to the scheme, unless there are very compelling practical or compassionate reasons beyond those – such as lacking the physical or mental capacity to apply or having

The following will also not generally be accepted as reasonable grounds for the person's delay in making their application:

" they were hampered in accessing the support available to help them apply by restrictions associated with the COVID-19 pandemic

" they overlooked the need to apply before the 30 June 2021 deadline, or they failed to get round to applying by that deadline, in light of their general personal circumstances, such as work or study commitments.

WHAT ARE THE EXAMPLES OF REASONABLE GROUNDS FOR LATE APPLICATION?

Home Office EUSS Caseworker Guidance describes some circumstances when it may be considered that a person has reasonable grounds for their delay in making their application. The list of examples is not exhaustive and according to Home Office own guidance, every case must be considered in light of its particular circumstances and the evidence provided.

For example, where a person subject to the 30 June 2021 deadline for applying to the scheme had a serious illness (or was undergoing significant medical treatment).

Another example is when a person exempt from immigration control can apply for EUSS status whilst they remain a person exempt from immigration control.

Where a person become aware as an adult that an application to the scheme should have been made on their behalf as a child and was not.

Where a person lacks the physical or mental capacity to apply to the EU Settlement Scheme and has continued to do so since the deadline applicable to them, that will normally constitute reasonable grounds for the person's delay in making their application to the scheme or for an appropriate third party to apply to the scheme on their behalf.

Where a person has a serious medical condition or is undergoing significant medical treatment around the time of the deadline applicable to them that may constitute reasonable grounds for their delay in making their application to the EU Settlement Scheme.

Where a person was prevented from applying to the EU Settlement Scheme by the deadline applicable to them because they are or were a victim of domestic violence or abuse (or the family member of such a victim), or they are or were otherwise in a controlling relationship or situation which prevented them from applying by the applicable deadline, that will normally constitute reasonable grounds for the person's delay in making their application to the scheme.

In all cases, Home Office will ordinarily need to see objectively verifiable evidence to be satisfied that there are reasonable grounds for the person's delay in making their application to the scheme (for example a letter from a doctor).

REPEAT APPLICATIONS TO EUSS SCHEME

Where a person has already made an in-time application to the EU Settlement Scheme, and this application has been refused, they will not normally be able to make a late application to the scheme based on there being reasonable grounds for their delay in making their application.

They will not normally therefore be able, after the deadline applicable to them, to make a further, valid application to the scheme. However, the Home Office guidance acknowledges that there may be occasional circumstances in which there may be reasonable grounds to re-apply. For example, where there is a good reason related to an underlying physical or mental condition why they did not engage with Home Office attempts to contact them following an earlier, intime application to obtain further information or evidence as to their eligibility for status under the scheme. Whether there are such reasonable grounds will depend on the particular circumstances of the case and the evidence provided.

Similar Home Office approach applies where a person has already made a late application to the EU Settlement Scheme and this application has been refused or rejected then they will not normally be able to establish that there are reasonable grounds for them to make a further late application to the scheme. However, there may be occasional circumstances in which there may be reasonable grounds for a refused or rejected late applicant to make a further late application to the scheme..

In all cases, Home Office will ordinarily need to see objectively verifiable evidence to be satisfied that there are reasonable grounds for the person to make a further application to the scheme (for example, a letter from a doctor).

CONCLUSIONS AND RECOMMENDATION

Readers may see from the above that from 9th August 2023 it is much more difficult to convince Home Office that late application should be accepted. In fact, in our view the Home Office is going to apply the new rules strictly and expect evidence in support.

What is more, the reason for late application will be assessed under validity criteria. This means that your application will be rejected if you do not satisfy the late application reasonable grounds criteria. Rejection means that your application will not be assessed further.

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.