The latest release to Home Office guidance on 16 January signifies a significant reversal in the government’s stance regarding late applications to the EU Settlement Scheme (EUSS).
In accordance with the Brexit withdrawal agreement between the UK and the EU, individuals residing in the UK before 31 December 2020 in accordance with EU law, were required to submit applications to the EUSS in order to maintain their lawful residency in the UK post-Brexit. The application deadline for this process was 30 June 2021. Submissions made after this cut-off were treated as late, and individuals in such cases had to demonstrate "reasonable grounds" justifying their inability to apply before the deadline. Applications that were deemed by the Home Office to lack reasonable grounds were consequently declined.
In August 2023, new guidance stated that a lack of awareness of the requirement to apply to the EUSS would not be considered a reasonable ground for late applications. Since this change, there had been a significant rise in the number of late EUSS application rejections for individuals who held documents stating they already had a permanent right to reside in the UK because of EU law.
In the new version of the EUSS caseworker guidance (EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members, version 22) published on 16 January 2024, the Home Office has now added two new sets of circumstances which might provide reasonable grounds for a late application to the Scheme.
The new circumstances are where a person has provided information and evidence that they had either a reasonable belief that they did not need to apply earlier to the EUSS, or a reasonable basis for being unaware that they needed to apply, and in either case they have now applied without further delay.
The guidance gives a range of factors which can be taken into account in this regard (if based on credible information and supporting evidence), and the wording suggests that an application is more likely to be successful if more than one factor is present, although every case will be considered in light of its particular circumstances and the evidence provided.
The new guidance is welcomed news and represents a significant u-turn on the rights of impacted applicants who were lawfully resident in the UK before Brexit.
We strongly recommend any individuals now applying to the EUSS provide a thorough explanation as to why they did not previously know they needed to make a new application to secure their immigration status in the UK.
In addition to any explanation, we recommend including copies of any relevant evidence the applicant may possess, demonstrating their reasonable belief that their immigration status had already been secured. Examples might include travelling into the UK using their permanent residence document as evidence of their right to enter, or receiving confirmation from an employer that a ‘right to work check’ had shown their continued permission to work in the UK.
If you have any questions about these changes, please contact a member of our Immigration Team here.
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