Will Late Applications for the EU Settlement Scheme be Allowed?

With the deadline of 30^th June 2021 for applications to the EU Settlement Scheme only a matter of weeks away, there is growing concern that many eligible migrants living in the UK are still not aware of the importance of applying. In a recent article, we wrote about the very real concerns raised by the Children’s Society that thousands of children from the EU living in the UK who are in or have left the care system may not have an EUSS application made on their behalf. This risks them becoming undocumented migrants in the UK. Indeed, any EU, EEA, and Swiss citizens living in the UK on or after 1^st July 2021 who has not applied to the EUSS will effectively become overstayers. In this article, we will take a look at whether the Home Office is likely to allow late applications to the EU Settlement Scheme.

Will The Home Office Allow Late Submissions?

In a letter written by Home Secretary Priti Patel on 14^th April 2020 to MP Yvette Cooper, Chair of the Home Affairs Committee, she set out what she believed would be the grounds for possible late submissions to the EUSS. In it, she stated,

“Where someone has reasonable grounds for missing the deadline, they will be given a further opportunity in which to apply. As with all aspects of the scheme, we will take a flexible and pragmatic approach. We intend to publish guidance for caseworkers in due course on what constitutes reasonable grounds for missing the deadline to ensure consistency of approach. Examples will include children whose parent or guardian does not apply on their behalf; those in abusive or controlling relationships who are prevented from applying or accessing the documents they need to do so; and those who lack the physical or mental capacity to apply. The EUSS will remain open beyond 30th June 2021, not just for those with reasonable grounds for applying late but also to accommodate those granted pre-settled statuses who will be able in due course to apply for settled status and close family members living overseas at the end of the transition period (and children born after that date) who later join a resident EEA or Swiss citizen here with status under the scheme, as they are entitled to do under the Citizens’ Rights Agreements. The application process will be the same as for those applying now, subject to any technological or other improvements which may be possible in the future”. This made the important point that the scheme has to remain open for those who need to upgrade from Pre-Settled to Settled Status and for other eligible applicants.

The Home Office has now published more detailed guidance for case officers on how to handle late applications to the EUSS. The guidance relates to those who:

• submit a late application
• are upgrading from Pre-Settled to Settled Status
• fail to upgrade before their pre-settled status expires
• family members joining an EU national sponsor through the family permit route

What Are The Reasonable Grounds For A Late Application To The EUSS?

The first point the guidance makes is that those eligible for the scheme will have the scope ‘indefinitely’ to make a late application where there are reasonable grounds. This suggests Home Office is not imposing a hard deadline on when late applications must be received. It also confirms:

• Case officers “must take a flexible and pragmatic approach to consider, in light of the circumstances of each case, whether there are reasonable grounds for the person’s failure to meet the deadline applicable to them under the EU Settlement Scheme” – i.e. they will assess each late application on a case by case basis.
• The greater the amount of time that has elapsed since the deadline, the harder it will be for them to satisfy the case officer that there are reasonable grounds for their failure to meet that deadline.
• Reminders will be sent to those whose pre-settled status is due to expire if they have not applied for full settled status.

Grounds for a late application, according to the guidance, will ‘normally’ be accepted if they involve:

• Children in care or care leavers who did not have an application made on their behalf. The guidance also clarifies that in this situation, there is no requirement for the case officer to look at why the person who should have applied for the child did not.
• Those lacking the physical or mental capacity to apply. The guidance clarifies, “This may include many adults with physical or mental capacity issues, but will also include adults with broader care or support needs, such as those who may be residing in a residential care home, or receiving care and support services in their own home, with long-term physical or mental health needs or a disability”.
• Cases involving serious medical conditions or significant medical treatment. This may apply, for example, for a person who has been incapacitated for a long time following an accident or illness such as COVID-19. The Home Office states, 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”, this would be a reasonable ground for late application to the EUSS.
• Victims of modern slavery
• Those in an abusive or controlling relationship or situation
• Other compelling practical or compassionate reasons – the Home Office states that this may include cases where the individual is unaware of the requirement to apply to the EUSS by the deadline due to having no internet access, limited computer literacy, or limited English language skills if they had been living overseas.

Final Words

The guidance from the Home Office should offer some reassurance to late applicants, charities, and local authorities that EUSS applications made after 30^th June 2021 will be considered if there are reasonable grounds. The challenge is that the Home Office is allowed discretion in such cases and will make the ultimate decision based on the facts available to them. For this reason, if you are submitting a late application, consider engaging an immigration Solicitor who will ensure you provide sufficient evidence for the ground/s on which you will rely.