What is the EU Settlement Scheme?
The EU Settlement Scheme (‘EUSS’) was established to confirm UK immigration status and protect the rights of EU (and Swiss) citizens who were living in the UK prior to 31 December 2020 (the end of transition period), and their family members post Brexit.
EUSS deadlines
The EUSS is currently primarily used by those who have held temporary residency in the UK for at least five years (‘pre-settled status’) and wish to become settled in the UK (‘settled status’).
Those who did not hold pre-settled status but who could evidence five years of continuous residency in the UK prior to the end of transition period were also eligible to apply for EUSS provided that their application was submitted by 30 June 2021 (‘EUSS deadline’). Any application made after this date is treated as a ‘late application’. Late applications are complex, discretionary applications and they have a high evidential burden. In the most recent applications in which we secured a successful outcome for our clients, the applications were approved due to the submission of detailed evidence of compassionate circumstances regarding issues such as bereavement, divorce and mental health problems, understandably flowing from these difficult life events. We set out further detail as to the process below. In order to be successful EUSS applications have to pass two stages of consideration.
Stage 1 – Validity
The Home Office first consider whether the standard requirements for a ‘valid application’ have been met i.e. the required information and biometrics have been provided and the application has been made within the required time-frame.
Where an application has not been made within the required time-frame (i.e. before the EUSS deadline) then at the validity stage the Home Office will consider whether the evidence provided indicates that the applicant may have had a reasonable ground for the delay in making the application.
If the application passes the validity stage the applicant will be issued with a Certificate of Application (‘COA’) which provides them with the temporary ability to live and work in the UK pending the Home Office considering the eligibility of the application.
If the application is deemed to be ‘invalid’ then there is no right of appeal against the decision and the only remedy is to either make another application to the EUSS, which would attract an even higher possibility of rejection, or to seek Judicial Review of the decision. Judicial Review is a legally complicated and expensive procedure.
It is therefore imperative that the evidence provided for late EUSS applications is both strong and also frontloaded in order to pass the validity consideration.
Stage 2 – Eligibility
If an application is deemed valid, then the Home Office will proceed to substantively assess its merits, considering both whether the applicant meets the eligibility requirements of the Immigration Rules and also whether the applicant does indeed have reasonable grounds for delay and that these reasonable grounds provide a sufficient justification for the late application.
If the application passes the eligibility stage then the applicant will be granted EU settled status in the UK which means that the applicant is no longer subject to UK immigration controls and could be eligible to apply for British Citizenship (subject to meeting the requirements of the Nationality Act 1981). If the application does not pass the eligibility stage it will be refused and the applicant will have a right of Appeal against the application decision.
What constitutes a reasonable ground for delay?
The EUSS caseworker guidance[1] provides several examples of what could constitute a reasonable ground for delay. These include serious medical conditions, coercive or abusive relationships, and family breakdowns, serving a sentence of imprisonment or other immigration related considerations. However, applicants should not be limited by the examples provided for in the guidance. The discretionary nature of the EUSS means that each application has to be considered on its merits and any well evidenced, compelling practical or compassionate circumstance for a delayed application could be considered a reasonable ground for delay. Applicants should be careful to show that the compelling reason given actually explains the delay in making the application as to succeed causation between the reason and the delay should be evidenced.
How to succeed?
As we get further away from the EUSS deadline, late applications become less likely to be successful without strong objective and independent evidence. UK proof of address documents, travel confirmation, health records, court and other official documents can all be useful evidence. However, detailed legal representations and witness statements are often a key piece of the puzzle in evidencing to the Home Office a full picture of how the applicant was impacted by the compelling circumstances put forwards and how this subsequently prevented them from applying on time.
How can we help?
It is important to provide your legal team with detailed and comprehensive instructions regarding all the circumstances that have led to your delayed application. Frequently aspects of an applicant’s circumstances that they do not see as relevant can actually be the key to a successful application.
The Citizenship and Immigration Team at Payne Hicks Beach have extensive experience of working with their clients to make successful late applications to the EU Settlement Scheme.
If you believe you may be eligible for EU Settled Status and are late in applying we would be happy to advise and assist you.
For further information please contact Kathryn Bradbury, Partner in our Citizenship and Immigration Department.
[1] https://www.gov.uk/government/publications/eu-settlement-scheme-caseworker-guidance
