From 1 July 2021, EU, EEA and Swiss citizens living in the UK without having applied for pre-settled or settled status under the EU Settlement Scheme will be here unlawfully. The Home Secretary confirmed a few months ago that people can apply after that deadline, but they must have “reasonable grounds to apply late”. Clarity on what grounds might be considered reasonable was lacking until 1 April 2021, when the Home Office released guidance on how it will deal with late applications: pages 26 to page 44 of the main caseworker guidance.

Since the Home Office also requires those with pre-settled status to make a further application in order to upgrade to settled status, this guidance also applies to those who fail to upgrade before their pre-settled status expires. It also applies to family members joining an EU citizen sponsor via the family permit route, and to a few other scenarios.

Overall, the guidance reflects the EU-UK Withdrawal Agreement and meets the majority of asks from the support sector — which raises the question of why it took so long to be produced. 

Even though the guidance is helpful, there are a few aspects of it that will require further exploration and monitoring.

Non-exhaustive list of good reasons

The list of reasonable grounds for applying to the Settlement Scheme late is non-exhaustive and every case must be considered in light of its particular circumstances. Nevertheless, the guidance provides examples of situations that will “normally” be accepted as reasonable grounds for applying late.

Children (including children in care and care leavers)

Where a parent, guardian or Local Authority has failed to apply for a child, this will normally constitute a reasonable ground. The guidance stresses that the Home Office does not need to consider the reasons why the responsible adult failed to apply to the scheme.

Physical or mental capacity and/or care or support needs

Where a person lacks the physical or mental capacity to apply, or has care or support needs, that will normally constitute reasonable grounds. Flexibility will also be extended to adults with broader care or support needs, such as those living in residential care homes or receiving care and support in their own homes. The Home Office will expect evidence to support these claims, as well as evidence of legal authority for a third party to act on behalf of the person lacking capacity, if applicable.

Serious medical condition or significant medical treatment

Where a person has “a serious medical condition (or was undergoing significant medical treatment) in the months before, or around the time of, the deadline applicable to them”, that will normally constitute a reasonable ground. The Home Office will expect to see evidence supporting the medical claims.

Victim of modern slavery

Where someone was prevented from applying because they are a victim of slavery, including human trafficking, that will normally constitute a reasonable ground for applying late.

If the person has a positive reasonable or conclusive grounds decision under the National Referral Mechanism, no further evidence will be required. Otherwise, the application will need to be internally referred to the Home Office safeguarding team for advice on referral to the National Referral Mechanism. If it results in a referral, then this will constitute a reasonable ground and the Settlement Scheme application can be considered without waiting for the outcome of the referral.

Evidence of slavery or trafficking is not required. The Home Office must be aware of indicators of slavery or trafficking and be alert to identifying such victims to ensure that they are referred into the National Referral Mechanism.

Abusive or controlling relationship or situation

Where someone was prevented from applying because “they are or were a victim of domestic violence or abuse (or the family member of such a victim) or are or were otherwise in a controlling relationship or situation which prevented them from applying”, then this will normally constitute reasonable grounds. The applicant will not need to provide specific evidence of the ill-treatment; any evidence, information or other factors that the EU citizen can provide will be considered by the Home Office, which must be flexible and pragmatic.

Other compelling practical or compassionate reasons

This is a catch-all for all other possible scenarios. For example, a person may have been unaware of the requirement to apply because they had no internet access, limited computer literacy, limited English language skills, lack of permanent accommodation, other complex needs, or was released from prison or immigration detention after the deadline.

This also includes those who did not apply in time because they did not have the required evidence (e.g. they could not get a valid ID document in time and did not know they can rely on an expired document). Such circumstances can be considered as a “compelling practical or compassionate” reason. The person will need to provide supporting evidence, which can include a letter or statement from a relative, carer or care home, explaining the barriers that prevented an earlier application.

Ceasing to be exempt from immigration control

Those who are exempt from immigration control altogether (for example, diplomats) may be able to apply late after they cease to be exempt. They will have a period of 90 days from the date they cease to be exempt to apply; if they miss that 90-day window, they can apply late. They will need to have reasonable grounds for applying late.

Existing limited or indefinite leave to enter or remain

Those with limited leave can apply to the Scheme any time after their limited leave expires so long as they have reasonable grounds for applying late in line with the overall guidance. Those with indefinite leave do not need to apply at all, but there may come a point in time that they want to do so to acquire the additional rights that come attached to settled status. They can apply late to the scheme so long as they demonstrate reasonable grounds for missing the deadline, in line with the guidance.

Document or status under the EEA Regulations

There are people who have a biometric residence card or other residence document issued under the EEA Regulations and who may not realise that they can no longer rely on them beyond the deadline.

Benefit of the doubt

The guidance also suggests that there will be flexibility, at least initially after the deadline, for those who are applying late but who do not have an obvious basis for their late application. A highly skilled EU citizen in full-time employment is just as likely as any other EU citizen to miss the deadline if they did not know that the Settlement Scheme applies to them. In such a scenario the “benefit of the doubt” will be applied. The guidance explains:  

For the time being, following 30 June 2021, you will give applicants the benefit of any doubt in considering whether, in light of information provided with the application, there are reasonable grounds for their failure to meet the deadline applicable to them under the EU Settlement Scheme, unless this would not be reasonable in light of the particular circumstances of the case. Any change in approach will be reflected in a revision of this guidance.

The Home Office has confirmed to us that, for an “initial period” after the deadline, in most cases late applications will be accepted where a person was unaware of the need to apply. The person will simply need to explain why they were unaware and will not be expected to demonstrate reasonable grounds or provide any supporting evidence.

There remains ambiguity on how long this “initial period” will last. The Home Office has told us that it will look at reviewing the guidance “sometime later this year”.

Immigration enforcement

The policy says that where EU citizens are encountered by an immigration officer – and if it appears that they fall within the scope of the Scheme – they should be issued with a written notice. This should give them an opportunity to make a valid application under the Settlement Scheme, normally within 28 days of the date of the notice. No immigration enforcement action for being in the UK without permission will normally be taken during this period.

While appropriate and required, immigration lawyers are well aware of the pitfalls of written notices served on individuals. These written notices can easily be ignored, misunderstood, misplaced or forgotten about in the chaos of daily life. The format, content and language of this written notice is going to be key to its success. If complex, containing unnecessary legal jargon or written in a language that the EU citizen does not understand, it will have the intended effect.

Non-EU family members

As is the case with most immigration processes, it may adversely impact non-EU family members the most, particularly when thinking about how the enforcement process above will work in practice.

Non-EU family members often have the most complex family relationships and the most complex methods of having acquired or retaining residence rights from their EU citizen sponsor. It is also not going to be immediately obvious to immigration officers undertaking a raid that, for example, the non-EU family member they encounter is also the carer of a self-sufficient EU child. The non-EU family member may even not fully understand it themselves and, even if they do, may find it hard to explain during the stress and chaos of the raid.

The guidance on enforcement up to 1 July explains the care that must be taken during enforcement interviews to ensure those with rights are protected — but unintended outcomes still occur. On occasion, enforcement officers inadvertently miss the residence rights that some people possess. It is not unreasonable to presume that some people who will need the protection of the 28-day written notice may fail to receive them because of mistakes by enforcement officers. What happens in this situation is unanswered in this policy and is likely to be covered in subsequent updates to the enforcement guidance.

Enforcement after the 28-day window

There will inevitably be some people who fail to apply to the Settlement Scheme before the notice expires. The policy does not provide any information on what happens to such a person. Presumably, missing the window means that immigration enforcement is restarted, and the person will have less basis to claim a reasonable ground for a late application that comes after the window. We will need to await further updates to the enforcement guidance to understand this better.

Pre-settled to settled status

Although the headline Settlement Scheme deadline is 30 June 2021, the Scheme was never going to fully close on that date. The Home Office intends for it to remain open for years to come for those with pre-settled status to apply to upgrade to settled status.

As things stand, the deadline for those with pre-settled status to apply for settled status will be unique to the individual: it is the date of expiry of their pre-settled status. So late applicants can be those who fail to meet the deadline of 30 June 2021 to apply for initial status, but also those who miss their personal deadline to “upgrade” their status in the years to come. The also guidance applies to this cohort of people.

Pre-settled status holders should be reminded to submit their upgrade application:

The first grants of pre-settled status, under the initial test phase of the EU Settlement Scheme which began on 28 August 2018, will expire in Autumn 2023. This guidance will be updated before then and we will send a reminder to those granted pre-settled status to apply for settled status before their pre-settled status expires.

Any kind of reminder is helpful, although people can change email addresses and telephone numbers, so not all reminders will reach the intended recipients. It is easy to imagine settled status applications in the future hinging on evidence that the reminder did not reach the recipient in order to establish a good reason for applying late.   

A good first draft

Overall, the late application guidance is useful and appears to cover the majority of circumstances that EU citizens may find themselves in. As with any policy, there are improvements that can be made, and the Home Office has said that it is eager to receive suggestions. We hope that the Home Office will continue to work with other government services to ensure that every opportunity to reach EU citizens who have missed the deadline is taken.