The Home Office has again amended the rules and guidance on late applications made under the European Union Settlement Scheme. The new rules impose a far more restrictive regime than the previous guidance.
Initially all applications under the EU Settlement Scheme were to be made by the 30 June 2021 deadline, subject to the Withdrawal Agreement, with scope to make late applications accompanied by sufficiently reasonable grounds as to why the application was not made in a timely manner.
The Home Office demonstrated a generous understanding of the potential reasons that caused an applicant to fail to apply within deadline such as, in relation to children whose parents or local authority guardians were unaware of the deadline, ill health due to medical conditions that prevented an application or where a person was in an abusive relationship including those victims of trafficking or modern slavery. There was also a catch-all compassionate clause that invoked lack of awareness of the need to apply and gave such applicants the benefit of the doubt when they made a late application. Initially late applications were included as an eligibility decision, there was two-step criteria, the grounds for late application were considered and then the eligibility of the applicant.
The Home Office approach was considered to be benevolent to vulnerable and disadvantaged persons. However, there was a consequence to this as some applicants were aware that they would be rejected but still applied. During the time that the application was being processed these applicants were able to obtain permission to work, rent, have access the NHS together with other advantages.
Home Office has now introduced a standalone decision as to whether the reasons for a late application are valid which is considered before the question of eligibility arises.
Kavina Munja, immigration lawyer, explained "from 9 August 2023 late applications are now rejected if they do not have sufficient evidence to support their reasons for making a late claim. Crucially, there is no right of review or appeal against rejection of a late application due to insufficient supporting evidence" Kavina further commented "a late application is not, initially, in fact, "an application" as an application can only be submitted if there are reasonable grounds for missing the deadline. If it is decided there are no reasonable grounds an application cannot be made. Home Office will no doubt succeed in its objective to prevent abusive applications. However, there may also be many vulnerable individuals who are not able to access legal advice and despite having lived in the UK for a number of years will not be able to apply to remain"
The "reasonable grounds" that are now acceptable by the Home Office include the following:
- A person who is exempt from immigration control
- A person who has existing limited leave to enter or remain
- A person with existing indefinite leave to enter or remain
- Children (including children in care or care leavers)
- A person without the physical or mental capacity and require care or support to enable them to make an application
- A person with a serious medical condition or who was undergoing significant medical treatment
- A person in an abusive or controlling relationship or situation
- A person who has served or was serving a sentence of imprisonment
Additionally, there are further stipulations to some of the more restrictive requirements for Individuals making late applications under the EU Settled Status guidelines. For example, if a late application is made as a result of a serious medical issue/s, individuals must now present evidence of serious health needs showing that these conditions have lasted since 30 June 2021. Also, once recovered from the medical condition they must make an application without delay.
Grounds that are not Acceptable
The guidance has also implemented a new heading titled 'Circumstances which will not generally constitute reasonable grounds for delay in making an application' this was not part of the previous unrevised guidance. This applies to the following situations:
- Where a person was unaware of the need to apply to the EU Settlement Scheme, which can include people whose EEA documents appear to be valid and permit residence in the UK. - This may be one of the most difficult things to assess as it is now assumed that those individuals who are eligible should have made an application to secure their immigration status in the UK. The Home Office may take the view that foreign nationals who have not applied should have been aware that an application for EU Settlement Scheme was necessary and that such an application did apply to them and failed to do so.
- Should a person state that they failed to make an application by that deadline due to lack of internet access, limited computer literacy or limited English language skills. This is no longer accepted as reasonable grounds for their failure to make a timely application by the cut-off date, unless there are further compelling practical or compassionate reasons beyond lack of internet access, such as lacking the physical or mental capacity to apply or having significant, ongoing care or support needs, as previously mentioned.
- The late applicant suggest they were hampered in accessing the support available to help them apply by restrictions associated with the COVID-19 pandemic, the application will be rejected.
- The individual overlooked the need to apply before the 30 June 2021 deadline in light of their general personal circumstances, such as work or study commitments is most likely to be rejected but each person's situation will be investigated.
Giambrone & Partners highly experienced immigration lawyers can provide extensive advice and guidance on all aspects of the new EU Settlement Scheme rules.
Kavina has considerable experience related to immigration applications and has a comprehensive range of knowledge and expertise. She has successfully dealt with complex immigration appeals in the jurisdiction of England and Wales.
Kavina can assist clients with the preparation of applications, working closely with the authorities and ensuring that there are no errors or omissions that may impact on the success of the application.
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