There have been several significant changes to the EU Settlement Scheme (EUSS) since its introduction in 2019.
Some of these changes impact those who have already applied. Others will affect all future applications received by the Home Office under the EU Settlement Scheme.
In this article, we shall look at Settled and Pre-Settled Status, how to make a successful late application under the EUSS, discuss some of the important changes to the EUSS, and how they may affect your application.
What is the EU Settlement Scheme and who can apply?
The UK government introduced the EU Settlement Scheme (“EUSS”) in order to safeguard and regularise the immigration status of EU citizens and their family members living in the UK following Brexit.
The EUSS is designed to enable EU, EEA and Swiss citizens living in the UK by the end of the transition period (i.e. 31st December 2020), and their family members to obtain ‘settled’ or ‘pre-settled status’.
Settled vs. Pre-Settled Status: What is the Difference?
Settled status is indefinite leave to remain in the UK and will be granted to those people who have continuously lived in the UK for at least 5 years. This entitles them to live permanently in the UK and apply for UK citizenship.
Pre-settled status is temporary leave to remain. It is granted to such applicants who have lived in the UK for less than 5 years.
Those who already have been granted pre-settled status may then apply for settled status once they have completed their 5 years of continuous residence in the UK.
Late Applications: Can you still apply under the EUSS?
You may be wondering, why is any of this relevant if the deadline to apply has already passed?
Although the deadline for most people to apply for Settled or Pre-settled status was 30 June 2021, you may still be able to apply if any of the following apply to you:
Late Application: Joining a Family Member
If you are joining a family member who was living in the UK by 31 December 2020, and
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- You were their family member by 31 December 2020; and
- Your family relationship still exists when you apply; or
Late Application: Applying in Your Own Right
You can show evidence of ‘reasonable grounds’ for why you could no apply by the deadline or in the time since the deadline has passed. Such evidence must:
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- Explain the reason or reasons you could not apply; and
- Cover the whole period since the deadline passes, as well as why you could not apply by the deadline.
Restrictive Approach to Late Applications
Though you may be able to make a late application to the EU Settlement Scheme, it is by no means certain that you will be granted your application.
This is even more true following the restrictive approach introduced on 9th August by the Home Office regarding how they will be deciding all applications submitted under the Scheme.
The Two Stage Test: How Does the New Restrictive Approach Work
On 9 August 2023, the EUSS ‘validity’ rules were updated, imposing a stricter approach to assessing late applications. It works as follows:
Step 1: Is the Application Valid?
The Home Office will first assess whether an applicant has reasonable grounds for delay in making their visa application. If they find that there were reasonable grounds explaining the delay, the application will then be moved on to the next stage.
Invalid Applications will be Refused regardless of Merit
The Home Office will reject the application, without considering the merits thereof, it they do not accept the grounds put forth by an applicant as to why they were delayed in making the application.
Thus, if “objectively verifiable” evidence of your reasonable grounds for making a late application are not provided or do not sufficiently satisfy the Home Office as being a reasonable ground justifying a delayed application, then the application will be rejected on the basis that it is not a valid application, without being considered on its merits.
What are some Reasonable Grounds for Delay?
Examples of grounds for reasonable delay in making an application, such as compelling practical or compassionate circumstances, include having a serious medical condition, being in an abusive or controlling relationship, serving a prison sentence, or if you were a minor and your parents did not make an application on your behalf.
You must, however, supply “objectively verifiable” evidence in support of any reasons you provide for the delay in making your application.
Step 2: Is the Applicant Eligible under the EUSS?
If the visa application passes the preliminary issue of validity, it will then have to pass the eligibility requirement of the EUSS.
In this stage, the Home Office will assess whether you are eligible to be granted leave to remain/enter in the UK under the EUSS. Put simply, only if an application reaches step 2, will they look at the merits of the application and decide whether the applicant has met the criteria for Settled or Pre-Settled status.
What are my Options if my Application is Rejected?
The latest updates to the Immigration Rules restrict the applicant’s options if their application is rejected.
Right of Administrative Review Removed
An Administrative Review is, a request for the application to be reviewed due to an error in law, or a caseworker error in applying the guidance and policy, which involves an internal Home Office review process.
As of 5th October 2023, it is no longer possible for applicant to apply for Administrative Review if they made an application under the EUSS which was rejected by the Home Office.
This rule also appears to act retrospectively, which means that any application that has been decided on or after 5thOctober 2023 will no longer have an option for administrative review, even if the application was made before this deadline.
Appealing to the Immigration Tribunal
However, applicants still have a right to appeal to the Tribunal against refusals. This is both a time and cost-intensive process and applicants therefore should be certain that they are preparing a robust and well-evidenced application to ensure that they get a favourable outcome in the first instance.
Administrative Review for applications made under Appendix Service Providers from Switzerland
A right of Administrative Review has been retained for refusals made to applications under the Appendix Service Providers from Switzerland category.
How Can RPK Solicitors Help?
Our team at RPK Solicitors is experienced in all aspects of UK private and business immigration law, including complex matters under the EU Settlement Scheme.
With our extensive experience and expertise in this area of law, we provide our clients with in-depth legal advice and guidance throughout the process and create a robust application that aims to maximise your chances of a successful outcome.
If you require legal assistance in this regard, please contact us today via email at legal@rpksolicitors.com or give us a call on +44 (0)20 39319820.
