Our previous post summarised Home Office guidance
on what counts as reasonable grounds for making a late application
to the EU Settlement Scheme.
As of 16 January 2024, the Home Office guidance was updated
again. This post focuses on updated guidance for those who did not
realise they needed to make an application to the EU Settlement
Scheme, and are now applying late. In particular, this affects
those applying late because they had not realised that their
residence document issued under EEA regulations is no longer
valid.
Deadlines for EU Settlement Scheme Applications and the
Possibility of Making a Late Application
The deadline for most applications to the EU Settlement Scheme was 30 June 2021. As set
out in our earlier post, a different deadline applies
in certain circumstances. In particular, for family members of EEA
citizens arriving in the UK on an EU Settlement Scheme Family
Permit after 01 April 2021, the deadline for making an application
to the EU Settlement scheme is three months after their arrival in
the UK (and before their permit expires).
Under the Withdrawal Agreement between the UK and the EU, if an
applicant has reasonable grounds for failing to respect the initial
deadline applicable to them, the Home Office must give them a
further reasonable period of time to apply. The test set out in
Home Office guidance is 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’.
Since 09 August 2023, the Home Office has been taking a more
stringent approach to assessing late applications under the EU
Settlement Scheme. Home Office guidance now states that, ‘in
general, the more time which has elapsed since the deadline
applicable’ to a person under the EU Settlement Scheme, the
‘harder it will be’ for them to satisfy the Home Office
that there are reasonable grounds for their delay in making their
application.
The Home Office guidance sets out example scenarios likely to
constitute reasonable grounds for a person’s delay in making
their application. These example scenarios are summarised in our earlier post and still apply under the current
guidance. The updated guidance goes on to explain the approach the
Home Office will take to circumstances in which a person was
unaware of their need to apply to the EU Settlement Scheme, as set
out below.
Late Application Based on Lack of Awareness of the Need to
Apply Earlier
The current Home Office guidance states that the fact that
someone was unaware of the requirement to apply to the EU
Settlement Scheme by the relevant deadline will, in itself,
generally no longer be considered a reasonable ground for delay.
However, as of 16 January 2024, the guidance accepts that there are
certain circumstances in which a person may be held to have had a
reasonable belief that they did not need to apply earlier to the EU
Settlement Scheme.
The guidance indicates that caseworkers may take into account
the following factors:
The Applicant Is a First-Time Applicant to the EU Settlement
Scheme With a Residence Document Issued Under the EEA
Regulations
A UK permanent residence document issued under EEA regulations
is no longer valid in the UK; those with a
permanent residence document issued under the EEA regulations need
to apply for another type of leave, such as leave under the EU
Settlement Scheme. A person with a documented right of permanent
residence issued under the EEA regulations, who has not been
outside the UK and Islands continuously for a period of more than
five years since they were issued with their permanent residence
document, is likely to meet the eligibility requirements for
settled status under the EU Settlement scheme. However, in order to
make a valid application to the scheme, it is necessary to show
reasonable grounds for delay in the application.
Those with a residence document issued under EEA regulations may
not have been aware that their document is no longer valid. The
updated guidance lists having a residence document issued under EEA
regulations as a factor that may contribute to a person having had
a reasonable belief that they did not need to apply to the EU
Settlement Scheme. If someone was unaware that their residence
document issued under EEA regulations is no longer valid, this
should be explained and evidenced in an application to the EU
Settlement Scheme.
The guidance also indicates that if an applicant has an EEA
national spouse, civil partner or durable partner, or other close
family members who applied in-time to the EU Settlement Scheme, but
believed that they themselves could rely on a residence document
issued under the EEA regulations, this is another relevant factor
that should be explained to evidence reasonable grounds for
delay.
The Applicant Is a First-Time Applicant to the EU Settlement
Scheme With Long Continuous UK Residence
The guidance suggests that if an applicant has long continuous
UK residence identified by tax or benefits records, this can also
point towards having reasonable grounds for delay in applying to
the EU Settlement Scheme if applying for the first time.
The Applicant Has a Compliant Positive Immigration History
The guidance indicates that an applicant will be considered more
likely to have had a reasonable belief that they did not need to
apply earlier to the EU Settlement Scheme if they otherwise have a
compliant positive immigration history.
The Applicant Has Received Incorrect Advice From an Employer or
Landlord Regarding Their Right to Work or Rent in the UK
If an applicant has evidence that they were incorrectly told by
their employer that they continued to have the right to work in the
UK since 30 June 2021, or they have evidence that they were advised
by their landlord that they continued to have the right to rent in
the UK, this can be used as evidence that the applicant has
reasonable grounds for delay in making their application.
The Applicant Has Travelled in and Out of the UK Since 30 June
2021 Without Being Signposted to the Scheme
Having travelled in and out of the UK since 30 June 2021 without
being signposted to the EU Settlement Scheme is another factor that
may suggest an applicant had a reasonable belief that they did not
need to apply earlier to the Scheme. If applicants have travelled
into and out of the UK since the 30 June 2021 deadline without
being signposted to the scheme, they should provide evidence of
their travel, for instance by providing passport stamps and
corroborating travel bookings.
Assessment of These Factors
The guidance suggests that if only one of these factors is
present, this ‘may or may not be sufficient’ and that
caseworkers will consider whether multiple factors are present.
Cases must be considered ‘in the round’, in the light of
their particular circumstances and the evidence provided.
The guidance emphasises that once a person became aware of their
need to apply to the scheme, they should have applied without
further grounds for delay, in order to be deemed to have reasonable
grounds for making a late application overall. This means that it
is very important for applicants to apply to the EU Settlement
Scheme as soon as they can once they realise that they need to make
an application.
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.
#Updated #Guidance #Late #Settlement #Scheme #Applications #General #Immigration
