The deadline to apply to the EU Settlement Scheme (“EUSS”) was 30 June 2021. But for those who missed it – all is not lost. The Home Office will continue to accept applications from individuals with ‘reasonable grounds’ for having missed the EUSS cut-off point. In this blog, we explore what might constitute a ‘reasonable ground’ and consider the legal implications for those who have fallen short of the deadline.
For more information about the EUSS and who this applies to, see our previous blog we published in the run up to the deadline. In summary, EU, EEA and Swiss citizens (excluding Irish nationals) who were resident in the UK on or before 31 December 2020 were required to apply to the EUSS to regulate their UK immigration status. The deadline for applying was 30 June 2021, and the requirement to do so applied to all EU, EEA and Swiss nationals – even those who had already been granted Permanent Residence under the old EEA Regulations.
Understandably, this has caught many individuals unaware, leaving them in the extremely stressful position of waking up on 1 July 2021 to find that they had become unlawful migrants overnight – despite having enjoyed years of lawful residence in the UK up until the night before.
We are already receiving enquiries from those who have missed the deadline, so have set out below some FAQs for anyone who has unwittingly found themselves in this sticky situation.
I missed the deadline. What should I do?
First and foremost – do not panic. Submit the application as soon as possible. The application itself is simple and straightforward, and is typically made in two stages:
- Downloading the ‘EU Exit: ID Document Check app’ and completing the relevant steps. (Although please note, if you do not have a passport with a biometric chip, you will need to send your passport to the Home Office for verification, once you have completed Step 2).
- Finalising the application by completing the form via the Home Office website. At this stage, you will need to upload any evidence and written representations explaining the delay in submitting the application – making explicit reference to the ‘reasonable grounds’ specified in the Home Office Guidance (see below).
What will the Home Office accept as a ‘reasonable ground’ for the delay?
The Home Office Guidance contains a detailed, non-exhaustive list of examples about what might constitute a ‘reasonable ground’ for having missed the deadline. These are set out in more detail in our earlier blog, and include a broad range of exceptions, including: exceptions made for children in care and care leavers, individuals who lack mental and physical capacity, and victims of domestic violence and modern slavery.
Helpfully, there is also a wider, catch all provision which allows applicants who have missed the deadline to apply late as a result of “other compelling practical or compassionate reasons”. Practical considerations can include something as simple as not having access to the internet. But this also includes situations where applicants were simply unaware of the requirement to apply because “they have lived in the UK for a significant period of time, and having done so, did not realise they must still secure status under the EUSS”.
Not only are these provisions wide ranging, the Guidance also contains a specific requirement for applicants to be given the “benefit of the doubt”, and for the Home Office to adopt a “flexible and pragmatic approach” when considering whether there are reasonable grounds for an applicant’s failure to meet the deadline.
It is therefore expected that, provided one of these wide ranging ‘reasonable grounds’ can be established, the majority of applications should be approved, despite being submitted out of time.
Where an out of time application becomes more problematic, however, is in relation to that individual’s legal status between 1 July 2021, and the date their EUSS application is decided – see below for further details.
What will happen if the Home Office finds out I have not applied before the deadline?
The Home Office has indicated that where Immigration Enforcement becomes aware of someone who has not applied by the deadline (including where someone is referred to them by the police or a local authority), they will be given written notice to apply to the EUSS within 28 days.
I submitted my application on or before 30 June 2021, but have not yet received a decision. What is my legal status while awaiting a decision?
The catchily-named ‘Citizens Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020’ protects individuals who submitted an application before 30 June 2021, but who had not received a decision on their application before the deadline.
In practice, this means that you can continue to work, study, drive, access NHS services, and travel freely in and out of the UK while your EUSS application remains pending – provided it was submitted on or before 30 June 2021.
However, in respect of travel in and out of the UK, there are numerous reports of EU, EEA and Swiss nationals experiencing significant difficulties entering the UK. This has been an issue not only for those who are still awaiting a decision on their application, but also for those who have already been granted Settled or Pre Settled Status.
The Home Office recently announced that they will be introducing new systems at all ports, to enable immigration officers to check whether an individual has made an application under the EUSS. If you are concerned about travelling to and from the UK, we would advise that you travel with a copy of your Certificate of Application, so that you can present this to the immigration officer in the event that you are questioned on arrival. If you are particularly concerned, you may also wish to instruct a lawyer to prepare a comfort letter setting out the legal basis upon which you are permitted to enter the UK. For more information about this, contact a member of our immigration team.
I submitted an application to the EUSS after 30 June 2021, and have not yet received a decision. What is my legal status while awaiting a decision?
Unfortunately, for individuals who did not submit an application before 30 June 2021, there is no such legal protection. Accordingly, anyone who has not yet applied, or who applied after 30 June 2021 and is still awaiting a decision on their application, is unlawfully present in the UK.
This has important implications in the following key areas:
Employed on or before 30 June 2021
For employees who commenced work with their current employer on or before 30 June 2021, and where that employer carried out a compliant right to work check and satisfied themselves of the employee’s lawful immigration status at the time they joined – the employee should be entitled to continue working, despite not having submitted an in time application to the EUSS.
Upon discovering that an employee has not submitted an EUSS application, an employer will need to take the following steps, which the Home Office have put in place as a transitional measure until 31 December 2021 to protect both employers and employees in cases where an employee has fallen foul of the deadline:
- Advise the individual that they must make an application to the EUSS within 28 days;
- Once the late application has been made, the individual must provide their employer with their Certificate of Application, or other proof (ex. email) confirming receipt of their EUSS application;
- Request a right to work check from the Home Office Employer Checking Service, upon which the employer will be given a Positive Verification Notice (‘PVN’). If the PVN shows the application is still pending, the employer must then request a further PVN before it expires, and thereafter every six months while the EUSS application remains pending, until the PVN confirms the EUSS application has been approved; and then
- If the PVN confirms the EUSS application has been refused, or if the employee does not make an application within 28 days as per step (1) above the employer must take steps to end the individual’s employment.
For employers who did not carry out a compliant right to work check at the time the employee joined (on or before 30 June 2021), the above transitional measure will not apply and employers will therefore need to take steps to end the individual’s employment until such time as they are granted status under the EUSS.
Employed on or after 30 June 2021
Individuals who have not yet applied to the EUSS, or who have submitted a late application and have not yet received a decision, are unlawfully in the UK. It will therefore not be possible to start a new job until your application under the EUSS is approved. It will not be sufficient to show that you have submitted a late application.
Regrettably, the Home Office has so far failed to issue guidance regarding the right of EU/ EEA/ Swiss nationals to travel in and out of the UK while a late EUSS application remains pending.
For anyone who has not yet received a decision on their EUSS application submitted on or after 1 July 2021, we would therefore strongly advise that you avoid travel where possible. While this remains a legally grey area due to the lack of published guidance, there is a risk that leaving the UK while an out of time EUSS application remains pending may cause the application to be treated as withdrawn. On re-entering the UK, there is also a high risk that you will be questioned at the border, and possibly even refused re-entry. This is a particular risk for any non-EEA national family members who may be travelling with you.
While the legal position on travel remains unclear, we therefore advise that you remain in the UK or, if submitting an application from outside the UK, take advice before travelling to the UK before your EUSS application has been decided.
In the UK, an individual’s right to drive is linked to their immigration status. This means that anyone in the UK unlawfully is not legally permitted to drive.
While it is unlikely that any enforcement action would be taken against an ‘unlawful’ EU/EEA/ Swiss national who is found to be driving, it is nevertheless illegal and there is a risk that criminal proceedings will be initiated. We would therefore advise that you avoid driving until a decision is made on your application.
Accessing NHS Services
Once you have submitted a late EUSS application, you will remain entitled to free NHS care from the date of the late application until the date of the decision. Once your application is approved, you will continue to have free access to NHS healthcare.
I submitted an application to the EUSS after 30 June 2021 and my application has been refused. What do I do?
Effective from 31 January 2020, anyone who makes a valid application under the EUSS which is subsequently refused will have a right of appeal. If your EUSS application is refused, you will have either 14 or 28 days from the date the decision is sent to appeal to the First Tier Tribunal (depending on whether you are inside or outside the UK when you are sent the decision notice). We would advise that you contact an immigration lawyer immediately upon receipt of the refusal letter.
For further information on any issues raised in this blog, please contact a member of our Immigration team.
ABOUT THE AUTHORs
Josephine Burnett is an associate in the immigration department’s private client team. She joined the team in November 2019, after completing her training contract at Kingsley Napley.
Prior to joining Kingsley Napley, Josephine studied Law with French at the University of Birmingham. As part of her degree, she spent a year studying French Law at the Université Panthéon-Assas in Paris.
Katie Newbury is a Partner in the immigration team and has over 10 years' experience across a wide spectrum of UK immigration matters, with particular expertise in applications made under Tier 1 of the Points Based System and complex personal immigration matters.
She regularly provides commentary on the workings of the UK Immigration Rules and is often involved in lobbying the Home Office, including in relation to the post-Brexit UK immigration system.