The EU Settlement Scheme provides a basis for nationals of the EU, other EEA countries and Switzerland, who were resident in the UK by 31 December 2020, to apply for an immigration status that will allow them to continue residing in the UK lawfully beyond 30 June 2021. It can also apply to the family members of nationals of these countries, and family members of British citizens in very narrow circumstances. Since 09 August 2023, the Immigration Rules and Home Office guidance on accepting new applications to the EU Settlement Scheme have changed.
This post summarises:
- Key deadlines for making applications to the EU Settlement Scheme;
- The possibility of making a late application where there are 'reasonable grounds' for doing so;
- New, stricter Home Office guidance on what counts as reasonable grounds for making a late application;
- Implications of a finding that there were no reasonable grounds for making a late application.
This information relates to new applications to the EU Settlement Scheme. The deadlines discussed here do not apply to applicants switching from pre-settled to settled status after five years' continuous residence in the UK.
Key Deadlines for EU Settlement Scheme Applications
The deadline for most applications to the EU Settlement Scheme was 30 June 2021.
However, as explained in our earlier post, there are some circumstances where a different deadline applies, for example:
- For family members of EEA citizens arriving in the UK on an EU Settlement Scheme Family Permit after 01 April 2021, the deadline is three months after their arrival in the UK;
- A specified spouse or civil partner of a Swiss citizen who arrived in the UK on or after 01 April 2021 should apply within 3 months of the date on which they arrived in the UK, and before 01 January 2026;
- A joining family member who is a child born in the UK on or after 01 April 2021 (including a child adopted in the UK on or after that date, or who becomes subject to a relevant guardianship order) should apply within three months of their being born in the UK (or within three months of being adopted in the UK or becoming subject to such an order).
Making a Late EUSS Application
Under the Withdrawal Agreement between the UK and the EU, if an applicant has reasonable grounds for failing to respect the initial deadline for the EU Settlement Scheme, the Home Office must give them a further reasonable period of time to apply. In considering a particular case, the Home Office must assess all the circumstances and reasons for which a person failed to respect their given deadline for applying to the EU Settlement Scheme.
As set out in our previous post, earlier versions of Home Office guidance required caseworkers to look to grant status under the scheme, rather than to look for reasons to refuse applications. Applicants were given 'the benefit of any doubt' regarding whether there were reasonable grounds for delay in making their application. However, changes to the Immigration Rules and Home Office guidance since 09 August 2023 mean the Home Office is now taking a more stringent approach to assessing late applications under the Scheme.
What counts as reasonable grounds for making a late EUSS application?
The test that Home Office caseworkers are required to apply under the guidance remains 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'.
However, the types of scenarios in which the Home Office is likely to consider a person to have reasonable grounds for making a late application have now changed. Home Office guidance describes some of the circumstances in which individuals may be considered to have reasonable grounds for their delay in making their application under the EU Settlement Scheme. The guidance states that the list is not exhaustive.
The following example scenarios are set out in the Home Office guidance as likely to constitute reasonable grounds for making a late application to the EU Settlement Scheme: (Please note that these are summaries only and you should seek further advice if you are considering making a late EU Settlement Scheme application.)
Exemption from immigration control
If a person is exempt from immigration control, for example because they work in a foreign government's diplomatic service or for an international organisation, they can still apply to the EU Settlement Scheme whilst they are exempt from immigration control. Alternatively, such a person can wait and apply to the EU Settlement Scheme after they cease to be exempt from immigration control. An EEA citizen or their family member who was resident in the UK by 31 December 2020, but was exempt from immigration control until after the 30 June 2021 deadline for applying to the EU Settlement Scheme, is considered to have reasonable grounds for delaying their application to the Scheme if they apply within 90 days of ceasing to be exempt from immigration control.
Existing limited leave to enter or remain
Similarly, where an EEA citizen or their family member resident in the UK by 31 December 2020 has existing limited leave to remain that expires after the 30 June 2021 deadline (i.e. they are currently in the UK on a different type of visa), the guidance suggests they have reasonable grounds for making a late application as long as they apply before the expiry of their existing leave.
Children (including children in care and care leavers)
Where a parent, guardian or local authority failed to make an in-time application on behalf of an applicant who was under 18, the Home Office guidance suggests the applicant may have reasonable grounds for making a late application if they apply as a child or as an adult. Where a person becomes aware as an adult that an application should have been made on their behalf, they then need to make a late application within a reasonable period.
Physical or mental capacity and/or care or support needs
Where a person has lacked the physical or mental capacity to apply to the EU Settlement Scheme since the deadline applicable to them, or has had significant, ongoing care or support needs since that time, this will normally constitute reasonable grounds for delay in making an application.
Serious medical condition or significant medical treatment
Having a serious medical condition or significant medical treatment may constitute reasonable grounds for making a late application. However, applicants have to explain the entirety of any period of delay. This means that if a person has had a serious medical condition for only part of the period since the passing of the 30 June 2021 deadline, this may not be enough to constitute reasonable grounds for delay for the entirety of that period.
Abusive or controlling relationship or situation
The guidance states that a person who was initially prevented from applying to the EU Settlement Scheme 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, will normally have reasonable grounds for making a late application.
Served or serving a sentence of imprisonment
In certain circumstances, a person released from prison after the EU Settlement Scheme deadline applicable to them may have reasonable grounds for the delay in their application. The guidance suggests this may be the case, for example, if a person had reduced access to relevant documents while in prison or were unable to enrol their biometrics.
Circumstances that will not generally constitute reasonable grounds for delay
The Home Office guidance also suggests that certain circumstances are now unlikely to be accepted as reasonable grounds for making a late application to the Scheme.
- Lack of awareness of the EU Settlement Scheme;
- Lack of internet access or having limited computer skills;
- Having limited English language skills;
- Having been hampered in accessing application support by restrictions related to the COVID-19 pandemic;
- General personal circumstances such as work or study commitments.
However, the guidance does note that 'every case must be considered in light of its particular circumstances and the evidence provided'.
Implications of a finding that there were no reasonable grounds for making a late application
The Immigration Rules have now changed so that an EU Settlement Scheme application will be invalid if a person makes a late application and is found not to have reasonable grounds for their delay. This means that there will be no further assessment of whether an Applicant meets the eligibility requirements under Appendix EU. Further, this means that an Applicant will not be granted a right of appeal or administrative review against the decision. The only option for challenging an invalidity decision is via judicial review. However, the relevant consideration in judicial review proceedings will be whether the Home Office's decision is lawful. This will not necessarily constitute a full reconsideration of the merits of an applicant's grounds for a late application. Applicants may therefore be forced to consider making applications to stay in the UK via other immigration routes.
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.