The most recent version of the EU Settlement Scheme caseworker guidance was released on 9 December last year. After checking the “changes from last version of this guidance” you would be forgiven for assuming that nothing had changed about the approach to late applications to the scheme, the main deadline for which was 30 June 2021. Your attention probably would not have been drawn to this completely new paragraph on page 35: 

Where a person has already made an in-time application to the EU Settlement Scheme, and this application has been refused, they will not be able to make a late application to the scheme based on there being reasonable grounds for failing to meet the deadline applicable to them, as they previously met that deadline. They will not therefore be able to make a further, successful application to the scheme as they will not have reasonable grounds.

So in came, unannounced, a new mandatory refusal ground for late applicants who previously made in-time applications. Perhaps worthy of mention in the changes section? All the more so given the Home Office had previously publicised – and, I would argue, encouraged – fresh applications as a way to resolve refusals under the scheme. The alternative is to challenge the refusal by asking for an administrative review or launching a formal appeal, both of which are much more costly and complex than just applying again for free. 

The blanket refusal of late applications where the person had originally applied in time contrasts with the more flexible approach to repeat applications where the original application was late:

Where a person has already made a late application to the EU Settlement Scheme, with reasonable grounds for failing to meet the deadline applicable to them, and this application has been refused, then they will not normally be able to establish that there are reasonable grounds for them to make a further late application to the scheme. Whether they can establish such reasonable grounds will, however, depend on the particular circumstances of the case.

The thinking appears to be that anyone who had made an in-time application to the scheme cannot not have a good reason for making a subsequent late application, because they met the deadline in the first place… so how can they argue in their new application that they have a good reason for missing the deadline? But removing all discretion from caseworkers in this situation is a retrogressive step that is out of step with the approach for refused late applicants who apply again.

Thankfully, that is not the end of the story. The charity Here for Good took up the mantle and wrote to the Home Office pointing to several flaws with this new approach. The department recently responded accepting that there will be “occasional circumstances” where there may be reasonable grounds for a refused in-time applicant to make a late further application to the Settlement Scheme. It has agreed to amend the guidance to “provide discretion for such circumstances”.

Reverting to a discretionary approach is common sense and in keeping with official promises about how late applications would be considered. But the original change shows that the Home Office no longer sees a fresh application as the most straightforward way to address refusal decisions. Whether it is an in-time or a late application that is refused, there will need to be persuasive grounds to make a new application rather than using administrative review and / or tribunal appeal.