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The UK left the EU in January 2020 and the transition period ended at 11 pm on 31 December 2020. In accordance with the Withdrawal Agreement there has been a grace period in place since 1 January 2021 which ends on 30 June 2021. The basis of the grace period is that those EU citizens (and EEA and Swiss citizens) who were resident in the UK on or before 31 December 2020 have until 30 June 2021 to apply to the EU Settlement Scheme.
For those EU citizens who have been in the UK for less than 5 years, they are able to apply for pre-settled status which will give them a 5 year visa. For those who have been in the UK for a continuous 5 year period, they can apply for settled status (indefinite leave to remain).
UK employers will be aware that since 1 January 2021 there has been a right to work grace period for EU citizens which also ends on 30 June 2021. The right to work grace period has enabled employers to continue to accept an EU citizen employee’s EU passport or national identity card for right to work purposes. As covered in our previous blog and alert, further guidance is expected on the right to work guidance from 1 July 2021 for EU citizens.
There are many circumstances where the 30 June 2021 deadline will not be the final cut off point for all EU Settlement Scheme applications.
Reasonable grounds for late applications
The Home Office caseworker guidance confirms there will be discretion for late applications in a number of circumstances. This flexibility partly stems from the Withdrawal Agreement which specified that there must not be a hard deadline at the end of the grace period.
There is a non-exhaustive list of examples in the guidance for where a late application to the EU Settlement Scheme should be accepted. Where an EU citizen or their family member has a reasonable excuse, Home Office caseworkers should consider the application and be minded to approve it where possible. Reasonable excuses for a late application could include where for example:
Converting pre-settled to settled status
Even those EU citizens who apply for pre-settled status before the 30 June 2021 deadline must ensure they submit their settled status application before the 5 year visa expires. As such, late applications will continue to be an issue for individuals and employers and the same guidance as to what constitutes a reasonable excuse will apply in that scenario. On which note, EU citizens should ensure that they update the Home Office with any change in their telephone number and email address so that they receive the reminders from the Home Office about the need to apply for settled status before their pre-settled status expires.
Normally only those family members who established their family relationship (such as a spouse/civil partner, or unmarried partner in a cohabiting relationship of two years) before the end of the transition period on 31 December 2020 will qualify for an application to the EU Settlement Scheme as a family member of an EU citizen before 30 June 2021. Children born after the end of the transition period can still qualify. Where a non-EU citizen applies from outside the UK for a family permit and arrives in the UK on or after 1 April 2021, they must apply to the EU Settlement Scheme within 3 months of arrival. There are also other deadlines to be aware of for family members of Swiss nationals and also family members of British citizens where they have been living together in an EU country.
Significant absences from the UK
Some EU citizens with pre-settled status may find themselves in a difficult situation if they have been outside the UK for over 6 months, perhaps due to the pandemic. If they arrived back in the UK by the end of the transition period on 31 December 2020, they can seek to apply again for pre-settled status. If they do not reapply for pre-settled status, they may well find themselves unable to apply for settled status due to the lengthy absence. Recent rule changes have confirmed that such repeat applications for pre-settled status can be submitted after 30 June 2021 and so EU citizens in such circumstances would be well advised to apply again to help them qualify for settled status.
Whether it is the 30 June 2021 deadline or a later date for one of the reasons set out above, EU citizens who miss their relevant EU Settlement Scheme deadline will most likely find themselves needing to submit a visa application via the new immigration system. Employers will therefore find themselves needing to apply for a sponsor licence if they do not already have one and EU citizens will need to have the sponsorship of a sponsor licence holding UK employer. For Skilled Worker applications, there is a minimum skill level and salary requirement meaning that not all EU citizens would qualify.
As a result, wherever possible EU citizens should be applying to the EU Settlement Scheme as soon as possible and before 30 June 2021. That said, as above some individuals may find that the end of the grace period is not the end of the road for them.
Marcia Longdon joined as a partner in the immigration team in January 2014. She has practised in the area of immigration, nationality and European law since 1998. She has had a long career in the field of immigration and is incredibly passionate about this area of law. She has won a number of challenges against the Home Office regarding complex cases, which have resulted in discretionary leave for her clients.
Tim Richards joined the immigration team as a professional support lawyer in June 2019. He is a solicitor with extensive experience in corporate and private client immigration matters and is responsible for the knowledge management and ‘know-how’ development for the immigration team.
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