EU Settlement Scheme: Latest Guidance Offers Concessions for Late Applications Based on Reasonable Grounds

A recent update in Home Office guidance marks a notable shift in the government’s position on late applications to the EU Settlement Scheme (EUSS).

Under the Brexit withdrawal agreement, EU nationals and their families residing in the UK before 31 December 2020 were required to submit applications to the EUSS in order to retain their lawful residency within the UK in the post-Brexit era. With a deadline of 30 June 2021 to make such application, many individuals found themselves submitting applications after this time period and thus being informed their applications would be treated as late. Once an application was deemed late, individuals had to demonstrate “reasonable grounds” to justify their failure to apply before the deadline. Any applications that failed to demonstrate sufficient reasonable grounds were subsequently declined. At first, the guidance was quite generous in its interpretation of what “reasonable grounds” could include.

Guidance released in August 2023 clarified that an individual’s lack of awareness to apply to the EUSS in order to retain their lawful residency, would not be a justifiable reasonable ground for a late application. This clarification was in response to a significant rise in the number of rejected EUSS applications for individuals who held documents stating they presently had a permanent right to reside in the UK due to EU law.

New Updates to Guidance

A recent update to the guidance has added two new conditions under which reasonable grounds for a late application to EUSS may be provided.

The new conditions outlined by the Home Office are:

• That an individual has provided information and proof evidencing that they had either a reasonable belief that they did not need to apply earlier to the EUSS, or;
• That they have a reasonable basis for being unaware of the requirement to apply.

In either instance the applicants must have now applied to the EUSS without any further delay.

This new Home Office guidance provides a range of factors that can be considered, indicating that an application is likely to succeed if multiple factors are applicable. However, it is important to note that each case will be individually assessed based on its particular circumstances and the evidence provided.

The new guidance provides welcome clarification on the matter and represents a substantial U-turn on the rights of those applicants who were lawfully resident in the UK prior to Brexit and found themselves impacted by the EUSS.

Notes for Applicants

It is advisable that all individuals applying to the EUSS provide a detailed and comprehensive explanation as to why they were not aware that they needed to make a new application to secure their immigration status in the UK. Copies of applicable evidence possessed by the applicant are recommended to be included in their application to aid the demonstration of their reasonable belief that they had already secured their immigration status. This might include evidence such as confirmation from their employer that a ‘right to work’ check evidenced their permission to work in the UK or the use of a permanent residence document to include in their application.

This article was co-authored by Trainee Solicitor, Hannah Roy.

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This article has been produced for general information purposes and further advice should be sought from a professional advisor.

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