The Home Office has changed the immigration rules and the guidance on making applications to the EU Settlement Scheme, taking a far more restrictive approach to late applications than has been the case previously. The Office of the Immigration Services Commissioner (OISC) has updated its guidance to reflect these changes and indicate which late applications level 1 advisers are still able to assist with.

Why are people allowed to apply late to the EU Settlement Scheme?

As most readers will be aware, unless applying as a joining family member, applications to the EU Settlement Scheme were supposed to be made by the deadline of 30 June 2021. This application deadline is subject to Article 18(1)(d) of the Withdrawal Agreement which requires the Home Office to consider whether to process an application that is made after the deadline:

where the deadline for submitting the application referred to in point (b) 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;

The Home Office test for assessing a late EUSS application is whether there are ‘reasonable grounds’ for the late application. The Home Office policy for late EUSS applications was first fully set out in version 11.0 of the EUSS caseworker guidance back in April 2021, complete with a set of non-exhaustive examples that would meet the reasonable grounds threshold. We covered that guidance here.

Examples of good reasons for missing the deadline included applications for children where a parent or local authority was unaware of the deadline, medical conditions that prevented an application being made, persons suffering abusive or controlling relationships, victims of trafficking, and modern slavery situations. Crucially the guidance included a catch-all compelling or compassionate clause that included a lack of awareness of the EUSS, or an incorrect presumption that the person concerned erroneously thought they did not need to apply.

The guidance also included a principle to give applicants the benefit of the doubt when assessing the reasons they missed the deadline:

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.

Procedurally this approach meant that the Home Office assessed the reasonableness of the late application as an eligibility decision, at the same time they considered the other eligibility elements such as continuous UK residency that started by 31 December 2020 and family relationships (where applicable).

It should be noted that Article 18(1)(d) of the Withdrawal Agreement envisages a two-stage test, firstly to assess whether there are reasonable grounds to accept the late application and if there are reasonable grounds, an assessment of the suitability and eligibility criteria. In this sense the Home Office approach to roll up the decision on the late application assessment and the other eligibility assessment into one decision was a deviation from the Withdrawal Agreement approach. However, as in practice the Home Office did not refuse applications solely because they were made late, the rolled up eligibility approach did not cause any disadvantage that offended the Withdrawal Agreement.

The Home Office approach to late applications was widely welcomed as pragmatic, generous and necessary, as it was evident that high numbers of people would miss the deadline for a variety of reasons, including many vulnerable and disadvantaged persons. The EU Settlement Scheme statistics bear testament to this, as between 01 July 2021 and 30 June 2023 there have been over 184,000 grants of pre-settled and settled status to late applicants. While the success rate of late applications was higher closer to when the deadline passed, looking at the first six months of 2023 – 18-24 months after the deadline – there were still over 6,000 successful late applications in each month.

Why the change in approach?

Undoubtedly this approach to late applications was positive and allowed many eligible late applicants to obtain the grant of status they were entitled to. However, a problematic byproduct for the Home Office was that persons who do not meet the eligibility requirements – for example EU citizens who moved to the UK after free movement ended – could make a free application and obtain permission to work, rent, get free access the NHS and so on, while the application was being processed.

Although these ineligible applicants will ultimately receive a refusal decision from the Home Office, during the time their application is being processed they are issued with a certificate of application which is used to prove the right to work etc. The Home Office view is that despite the significant numbers of successful eligible late applicants, the EU Settlement Scheme was increasingly being abused by ineligible applicants and therefore something needed to be done.

Home Office Minister, Lord Murray set out the Home Office concerns and proposed changes to Appendix EU in a letter to the Home Affairs Select Committee in July 2023:

…the changes will enable us, in line with the Withdrawal Agreement, to consider whether there are reasonable grounds for a late EUSS application as a preliminary issue, before going on to consider whether a valid application meets the relevant eligibility and suitability requirements. This will prevent those making a spurious late application obtaining a Certificate of Application and thereby benefiting from temporary protection of rights under the Withdrawal Agreement pending the final outcome of their application.

What has changed?

The Statement of Changes in Immigration Rules HC 1496 added a ‘required date’ clause at (e) to the validity assessment of EU9 of Appendix EU. As explained in the explanatory memorandum and parliamentary statement, this means that from 9 August 2023, the decision on whether to accept a late application became a ‘standalone’ decision taken at the initial validity stage, before any assessment of suitability or eligibility takes place.

As observed above, this approach is permitted by the Withdrawal Agreement, with the amended process bringing the EU Settlement Scheme into line with the late applications approach envisaged by the Withdrawal Agreement.

Only those applications the Home Office accepts have reasonable grounds for missing the deadline are permitted to be fully processed for suitability and eligibility. These ‘valid’ applications will receive a certificate of application to prove their rights whilst the application is under consideration.

Late applicants deemed not to have sufficient justification are rejected without any consideration of suitability and eligibility; there is no right of administrative review or appeal against the decision to reject a late application. The validity decision on the reasonable grounds is supposed to take a matter of days, but in some cases could take longer if the Home Office has to engage with the applicant to obtain more information and / or evidence about their late application reasons.

Crucially, the change in approach means that rejected late applications – notwithstanding the description – are not actually considered applications as far as the Withdrawal Agreement is concerned. This is because as per Article 18(1)(d) cited above, the requirement is to allow a person to submit an application if there are reasonable grounds for missing the deadline. Where there are no reasonable grounds as judged by the Home Office, there is no application to speak of.

This matters because the procedural protections contained in Article 18(1) do not kick in unless there is an application. Therefore, the obligation on the Home Office to assist applicants to obtain their status (Article 18(1)(o)) and the explicit requirement to provide a full right of judicial redress (Article 18(1)(r)), will not apply where a late application is rejected. The problems created by the lack of appeal right has been considered further below.

A more restrictive EUSS caseworker guidance

At the same time as changing the process for deciding late applications, the Home Office revised the EU Settlement Scheme caseworker guidance to significantly limit the example situations where it is accepted a person has a justification for making a late application. The emphasise of the guidance is now twofold, firstly looking at why the person missed the deadline and secondly, if they have justification in the delay in making the application.

In some situations a person may have grounds for missing the deadline, for example hospitalisation following an accident in June 2021, but might not be able to justify the delay in applying, for example, if they were discharged from hospital in January 2022 but did not make their application until September 2023. There is more emphasis on providing acceptable evidence for the late application than in the past and therefore, explanations for missing the deadline may be rejected unless there is strong corroborative evidence. 

Some of the examples of reasonable grounds have been retained in the guidance, but have been re-worded so that they are far more restrictive. For example, a person with medical reasons for missing the deadline generally must present evidence of serious health needs that have lasted since 30 of June 2021.

In some cases, previous examples of late application reasons have simply been removed, such as victim of trafficking even though it is absurd to suggest a victim of trafficking would not have a reasonable ground for applying late to the EU Settlement Scheme (the removal of this has reason has more than the whiff of politics about it). For those who have made previous unsuccessful applications to the EUSS, the guidance is very strongly stacked against them being able to make a subsequent late application unless they can show good reasons why they were unable to engage with the previous application.

The revised guidance also now has a heading titled ‘Circumstances which will not generally constitute reasonable grounds for delay in making an application’ which was not present in the previous versions. Concerningly, this section applies situations where a person was unaware of the need to apply to the EUSS, which can include situations where persons hold EEA Regulations documents that appear on the face of them to still be ‘valid’ documents.

Awareness of the EU Settlement Scheme is such a difficult thing to assess as, it would be a safe starting point to assume that people who are eligible for status would be inclined to make a free application to the Home Office, to secure their right to live in the UK and avoid the hostile immigration environment. So when people do not apply, the reason is usually because they have not encountered an event that made them realise that the EU Settlement Scheme applied to them.

Because of the way the Home Office has implemented post-Brexit immigration policies, some EU citizens and their family members have been able to continue their lives in the without having come up against a Home Office immigration check, such as a right to work or rent check or an issue at the UK border. It is only once they encounter such a check that they understand the need to hold pre-settled or settled status.

It is fair to say the further away from the deadline time moves, the more likely that people might have encountered that triggering immigration check, but it feels excessively punitive to introduce a negative presumption that someone would be aware of the EU Settlement Scheme unless they can produce something additional as mitigation (such as medical grounds or a controlling relationship).

The guidance also no longer refers to giving late applicants the benefit of any doubt and although the guidance emphasises that each case must be considered on its individual facts and merits, the overall thrust of the guidance will lead to the rejection many late applications.

Example

Amara applied for permanent residence as the spouse of a Spanish national and was granted a biometric residence card showing permanent residence issued in December 2013. The BRC is valid for 10 years and ‘expires’ in December 2023. In 2018, Amara divorced but continues to reside lawfully in the UK based on her acquisition of permanent residence.

The Home Office EU Settlement Scheme communications campaign was targeted towards EEA citizens and therefore, Amara was unaware of the need EUSS by 30 June 2021. The Home Office did not use the contact details that they had on their records from when Amara applied for her permanent residence to attempt to communicate to her the need to apply to the EU Settlement Scheme.

After the EU Settlement Scheme passed Amara travelled out of the UK on three occasions, each time she travelled back to the UK she passed an immigration desk and showed her BRC to an immigration officer and was allowed to enter.

As Amara’s BRC was nearing the ‘expiry’ date in October 2023 she contacted the Home Office Settlement Resolution Centre to ask how to replace the card. Instead of being made aware of the need to apply to the EU Settlement Scheme, she was guided towards the Home Office replace your biometric residence card page on GOV.UK. Her application to replace the BRC was unsuccessful for not have the necessary underlying legal status, as her permanent residence is no longer valid even though the BRC does not appear to have expired.

She contacts Settlement Resolution Centre again and is this time told that she should have applied to swap her permanent residence for settled status by the 30 June 2021 deadline. In November 2023 she makes an application to the EUSS which is rejected, as the EU Settlement Scheme caseworker guidance has a presumption against late applicants being unaware of the need to apply as over two years has passed since the deadline. Her explanation as to why she did not know to make an application are not considered “very compelling practical or compassionate reasons” as required by the caseworker guidance.

As she has presented all her reasons for applying late to the Home Office, Amara’s only option is to bring a judicial review against the rejection decision otherwise she will be unable to get settled status even though she acquired free movement permanent residence and has lived in the UK since 2008.

What happens if the late application is rejected?

As noted already, by making the reasonable grounds decision a validity decision, the Home Office has removed the appeal right that would have been provided to a late applicant refused at the eligibility stage. We know the Withdrawal Agreement allows for the Home Office to assess the late application reason before progressing to consider suitability and eligibility, but what about the lack of appeal right? This is controversial as the lack of appeal means rejected late applicants may never be able to get status, irrespective of meeting the eligibility conditions.

What is reasonable or not has an element of subjectivity and in the context of such a significant decision and outcome, there is a clear case for a right of independent review from the Tribunal. There is no reason why the Home Office could not have introduced a two-stage process with an appeal right provided for both decision stages (i.e. an appeal if the late application is rejected, and an appeal if the late application is accepted but rejected on suitability or eligibility grounds). Instead, the Home Office only allows for Tribunal appeal at the second stage, meaning that a rejected late applicants can only challenge that decision by judicial review.

There is a question as to whether only providing judicial review to such a key decision is consistent with the Withdrawal Agreement, as it is generally envisaged that decisions not to grant or to restrict residence status carry a full right of judicial redress. Although the Article 18(1)(r) appeal protections do not apply to a rejected late application for the as it is not deemed an application, Article 21 provides general safeguards and a right of appeal stating:

The safeguards set out in Article 15 and Chapter VI of Directive 2004/38/EC shall apply in respect of any decision by the host State that restricts residence rights of the persons referred to in Article 10 of this Agreement.

Article 15 of the Free Movement Directive confirms that appeal procedures set out in Articles 30 and 31 of the Directive must “allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed decision is based. Such redress procedures shall ensure that the decision is not disproportionate”. This is exactly the same language used in Article 18(1)(r) and therefore, the argument follows that a rejection of a late application is a decision to restrict the residence rights of a person who falls under Article 10. As such, a full right of appeal reviewing the ‘facts and circumstances’ is required. As the Home Office has not provided a right of appeal to rejected late applications and seemingly has no intention to do so, this argument will need to be explored by judicial review.

The alternative to bringing judicial review would be to resubmit a late application attempting to improve on the previously rejected late application. The standard text of a Home Office rejection letter does not make it abundantly clear that someone could make a further late application but this is possible. This approach would most obviously benefit a person who has attempted to make a late application without representation which is rejected and then seeks out qualified representation to put in a fresh late application emphasising the strength of the late application grounds (potentially with reference to the caseworker guidance). Where a late application submitted in the strongest terms with evidence available is still rejected, the only current option would be to bring a judicial review.

Conclusion

It is likely that the Home Office intention to bar ineligible persons from obtaining certificates of application will be achieved. It would be surprising if someone ineligible for EUSS status was able to present a compelling case for having a late application accepted for processing. The worry is about the cost of this policy to those who are eligible for status but for the fact they are making a late application.

Reportedly there have been many cases of eligible late applications with seemingly reasonable grounds for applying late, being rejected by the Home Office. Some of these rejected applications have been reconsidered by the Home Office following intervention from Grant Funded Organisations and other representatives, in some cases involving pre-action work. However, it seems that many rejected late applicants, especially those who are unable to engage with qualified advisers who may be highly vulnerable, will find themselves permanently locked out of the EUSS irrespective of the years they have spent living in the UK.