In recent times, the Home Office has introduced significant changes to the UK immigration rules and guidance for EU Settlement Scheme applications, adopting a more stringent approach towards late submissions. As a result, it’s crucial to understand the new regulations and eligibility criteria, as they can significantly impact the outcomes of late applications. In this article, we’ll explore these changes, their implications, and why they were implemented.
Late EU Settlement Scheme Applications
Understandably, some applicants might have valid reasons for submitting their EU Settlement Scheme applications after the initial deadline of 30 June 2021. The eligibility for late applications is subject to Article 18(1)(d) of the Withdrawal Agreement. This article allows the Home Office to consider late applications under certain circumstances, such as when applicants had ‘reasonable grounds’ for missing the deadline. These grounds can encompass a variety of situations, including cases involving children, medical conditions, abusive relationships, trafficking, or modern slavery. The guidance also included a compassionate clause for applicants who were unaware of the EU Settlement Scheme or presumed they didn’t need to apply.
Furthermore, the Home Office aimed to give applicants the benefit of the doubt when evaluating the reasons for late submissions. This approach integrated the late application assessment into the eligibility decision, a deviation from the Withdrawal Agreement’s two-stage process.
The Home Office’s lenient approach to late applications was welcomed for its generosity and pragmatism. Over the period from 1 July 2021 to 30 June 2023, more than 184,000 late applicants were granted pre-settled and settled status, demonstrating the scheme’s success in accommodating those who missed the initial deadline.
The Home Office’s Pragmatic Approach to Late Applications
While the leniency benefited many eligible late applicants, it had unintended consequences. Some ineligible applicants, like EU citizens who arrived in the UK after the end of free movement, took advantage of the free application process to gain certain rights during the application processing period. To address this issue, the Home Office decided to revise the approach to late applications.
The Home Office’s concerns and proposed changes were outlined by Home Office Minister Lord Murray in a letter to the Home Affairs Select Committee in July 2023. The changes aimed to ensure that late applicants with spurious reasons would not obtain a Certificate of Application, granting them temporary protection of rights under the Withdrawal Agreement.
Key Changes in the EU Settlement Scheme Late Application Process
The changes, as outlined in the Statement of Changes in Immigration Rules HC 1496, introduced a ‘required date’ clause to the validity assessment of EU9 in Appendix EU. This clause made the decision on whether to accept a late application a standalone decision, separate from the assessment of suitability or eligibility. This change aligned the EU Settlement Scheme with the Withdrawal Agreement’s intended approach to late applications.
Only late applications with reasonable grounds are allowed to proceed for suitability and eligibility assessments, receiving a Certificate of Application. Late applicants without sufficient justification are rejected without an appeal right. The process should take only a few days, but it may take longer if the Home Office needs more information or evidence regarding the reasons for the late application.
Importantly, rejected late applications are not considered applications under the Withdrawal Agreement, meaning that certain procedural protections do not apply. The lack of an appeal right for rejected late applications has sparked controversy.
Restructured EUSS Caseworker Guidance for Late Applications
In addition to the change in the late application process, the Home Office revised the EU Settlement Scheme caseworker guidance. The new guidance significantly restricts the situations in which a late application is considered justified. It emphasises both why the applicant missed the deadline and whether they can justify the delay.
Applicants may have grounds for missing the deadline, such as medical reasons, but may still need strong corroborative evidence for the late application’s explanation. Some previous examples of reasonable grounds have been reworded to become more restrictive, and some have been removed entirely. The guidance also includes a section specifying circumstances that generally do not constitute reasonable grounds for delay in making an application, even in cases where applicants were unaware of the need to apply to the EUSS.
The guidance no longer refers to giving late applicants the benefit of the doubt, and the overall direction of the guidance indicates that many late applications are likely to be rejected.
A Closer Look at the Lack of Appeal Right
With the introduction of the validity decision for late applications, the appeal right for late applicants rejected at the eligibility stage has been removed. This means that rejected late applicants may never obtain status, even if they meet the eligibility conditions.
A potential solution is to resubmit a late application, particularly for those who initially applied without representation and then seek experienced, qualified legal representation to put forth a stronger late application. However, in cases where a late application submitted in the strongest terms with available evidence is still rejected, the only option is to pursue judicial review.
Conclusion
The Home Office’s intention to bar ineligible applicants from obtaining Certificates of Application appears to be successful. However, there are concerns about the impact on eligible late applicants who may be permanently locked out of the EUSS, despite having strong reasons for their late applications. Legal challenges may arise regarding the lack of an appeal right for rejected late applicants, as it may be inconsistent with the provisions of the Withdrawal Agreement. This issue will likely be explored further through judicial review.
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