EU citizens and their families who apply late to the EU Settlement Scheme will have their day-to-day rights protected while that application is considered, the Home Office has announced.

The U-turn came in a press release on Friday evening, which says:

While the numbers applying late [i.e. after 30 June 2021] have been small compared to pre-deadline application numbers, to provide further reassurance to late applicants the government will protect their rights until their application and any appeal is decided.

The government will also take a similar approach with joining family members, who will have temporary protection for three months after their arrival in the UK and pending the outcome of an EUSS application made during that period (and of any appeal).

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It is not clear from this statement whether the government proposes to change the law to protect people in this position; for example, by extending the regulations that cover people with pending applications submitted before the deadine to cover late applicants also. Parliament isn’t sitting at the moment, so wouldn’t be able to pass anything in the short term anyway. The statement says that “further details will be published in due course”.

It may be that the government intends to muddle through without legislative change. After all, as we explain in our briefing on the subject, the approach to pending in-time applications is already more lenient than the strict letter of the law would seem to allow. In this scenario, the government would just update its various guidance documents to instruct those in authority who come in contact with late applicants to leave them alone, essentially.

We see a flavour of this in a note added to a gov.uk page on right to work checks for EU citizens, also on Friday afternoon:

On 6 August 2021, the government announced temporary protection for more applicants to the EUSS. This means that those who apply from 1 July, and joining family members, will continue to have their rights protected while their application is determined.

Late applicants and joining family members will now be able to take up new employment while they await the outcome of their application.

This is not yet reflected in the employer’s guide to right to work checks, but presumably it soon will be. 

So, taking the government’s announcement at face value, and setting aside the legal mechanics, the before and after picture for the rights of late applicants looks something like this:

We should stress a couple of things at this point. First, all this is only for people who have made an EU Settlement Scheme application on or after 1 July 2021, and it is still being considered. Once somebody is granted their pre-settled or settled status, even on the basis of a late application, they are pretty much sorted.

On the other hand, if somebody might be entitled to apply late but hasn’t actually done so, there is no particular reason to think that they will be protected by this announcement. Actually putting in the application is what triggers these temporary protections. The Independent reports today on the potential plight of some 70,000 non-applicants who are due a final warning about their benefits.

There was always a strong legal argument that interim protection for late applicants was required under the EU-UK Withdrawal Agreement. Article 18 provides:

(1) ….

(d) where the deadline for submitting the application…. is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline…

(3) Pending a final decision by the competent authorities on any application referred to in paragraph 1, and pending a final judgment handed down in case of judicial redress sought against any rejection of such application by the competent administrative authorities, all rights provided for in this Part shall be deemed to apply to the applicant…

The reference to “any application” arguably includes a late application.

This is a point that the European Commission, among others, has been making for some time. The Home Office press release explictly mentions that it has informed the Commission of its decision. It also refers to the change as a “generous approach”, when it may be more a case of belatedly bowing to legal reality. Nor is it particularly “generous” to those who have been struggling to claim benefits etc over the past six weeks under a now-abandoned policy.

Looking ahead, though, the announcement is certainly welcome news. The challenge is to make it stick. Employers, landlords and benefits officials have spent months if not years hearing that EU citizens who miss the deadline are persona non grata, and since 1 July were supposed to act accordingly. Now the government has changed the rules on them again. It would not be a surprise if understanding of the new position among those supposed to enforce it were somewhat lacking.

In other words, the risk remains that people who have made late applications will struggle to benefit from the government’s beyond-late-minute reverse ferret. The Home Office announcement does say that “employers and landlords are advised to get in touch with the Employer and Landlord Checking Services if they have a prospective employee or tenant who has confirmation of a late application”. Urging them to do may be the best to vindicate these temporary rights in practice.