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Changes to treatment of some late applications to the EU Settlement Scheme in new guidance

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The Home Office has introduced some flexibility for some people who are applying late to the EU Settlement Scheme, after the rules were severely tightened in August last year. The new version 22 of the guidance for caseworkers on the EU Settlement Scheme applies to decisions made from 16 January 2024 and also makes some other changes. A comparison of the old and new versions shows the main differences, which are detailed below.

Changes for those who hold permanent residence and are applying late

In the section “Examples of reasonable grounds” for making a late application, further explanation and two new examples have been given on pages 50 and 51 under “Circumstances which will not generally constitute reasonable grounds for delay in making an application”. This provides for situations where the person had a “reasonable belief” that they did not need to apply or “reasonable basis” for being unaware that they had to do so. The application must have been made without further delay once they became aware of the need to make it.

Relevant factors in support of the late application being accepted can include the following, but these need to be “based on credible information and supporting evidence” that the person:

  • is a first-time applicant to the EU Settlement Scheme with a residence document issued under the EEA Regulations, indefinite leave to enter or remain under another route or long continuous UK residence identified by the automated checks of tax and benefits records
  • has an EEA national spouse, civil partner or durable partner or other close family member or members who applied in-time to the scheme, but believed that they could rely on a residence document issued under the EEA Regulations
  • has a compliant positive immigration history
  • has received incorrect advice from an employer or landlord since the end of the grace period on 30 June 2021 as to their right to work or rent in the UK without EU Settlement Scheme status
  • has travelled in and out of the UK since 30 June 2021 without being signposted to the scheme

The guidance says that people in this situation will still need to satisfy the Home Office decision maker “on the balance of probabilities” that they have reasonable grounds for making the late application. The more of the above factors that are present in a case, the stronger the argument will be for the application to be accepted.

The first example provided in the guidance is where a person was issued with a permanent residence document under the EEA Regulations and did not realise that this was affected by Brexit. He then left the UK for two years to look after a seriously ill parent. When he returned to the UK he showed a potential employer his permanent residence document for a right to work check and was told this was no longer accepted and he needed to apply under Appendix EU, which he then did.

The second example given is of a non-EEA citizen who has lived in the UK since 2007. She is dependent on her son and his EEA citizen wife and speaks little English. Her permanent residence card expired in December 2023 and when she went to renew it she was told this was not possible and she needed to apply under Appendix EU, which she then did.

Returning residents

There has been a small addition to page 15. This directs anyone who has been granted indefinite leave to enter or remain under Appendix EU, but who has lost this due to spending more than five years outside the UK, to apply as a returning resident if they want to return to the UK for settlement.

Concession for certain children of a ‘relevant EEA family permit case’

There is a new section on page 22 “Concession for certain children of a ‘relevant EEA family permit case’”. This applies where the parent is a dependent relative who meets subsection (a) of the definition of a ‘relevant family permit case’ at Annex 1 of Appendix EU and the child was born outside the UK either:

  • before 11 pm on 31 December 2020 and a valid application for an EEA family permit was not made under the EEA Regulations before then, or
  • after 11pm on 31 December 2020 and so it was not possible to make such an application before then

Where this applies and the child was granted an EU Settlement Scheme family permit outside Appendix EU (Family Permit) to either accompany their parents to the UK or join them there, an application can be made for the child as a family member (dependent relative) of a relevant EEA citizen. They will then be deemed to meet the necessary requirements, although the application must be made “as soon as reasonably practicable” and generally within three months of arrival to the UK.

Conclusion

Time will tell if these changes are enough to stem the increasing number of media reports of EEA nationals who are experiencing difficulties as a result of late applications. It does seem unlikely, given the number of issues identified in our previous coverage of this, which remain unaddressed by these changes.

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Sonia Lenegan

Sonia Lenegan is an experienced immigration, asylum and public law solicitor. She has been practising for over ten years and was previously legal director at the Immigration Law Practitioners' Association and legal and policy director at Rainbow Migration. Sonia is the Editor of Free Movement.

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