What is the EU Settlement Scheme?
The UK government introduced the EU Settlement Scheme (EUSS) through Appendix EU of the UK Immigration Rules as a way to safeguard the rights of residence of EU nationals and their family members in the UK. The EUSS allows EU nationals and their family members to apply for ‘settled’ (indefinite leave to remain) or ‘pre-settled’ (limited leave to remain) status in order to remain in the UK following the end of the transition period (31 December 2020).
Is an application under the EU Settlement Scheme compulsory?
Yes, if you wish to remain in the UK.
The vast majority of EU nationals and their family members who are currently in the UK will have to make an application under the EUSS. There are exceptions for Irish nationals, those who already have indefinite leave to remain or enter the UK under UK law and those who are dual British and EU nationals. This means that those individuals who already hold permanent residence documents issued under the EEA Regulations 2016 must also apply under the scheme before the end of the transition period.
Is there a deadline to make an application under EUSS?
Yes. The deadline for EU nationals and most of their family members to make an application under the scheme was 30 June 2021. Please note that EU nationals intending to apply under the scheme must normally have been resident in the UK by 31 December 2020. There are separate deadlines for non-EU family members living overseas – see below.
What is the deadline if I have non-EU family members living overseas?
If you have a non-EU family member who is currently overseas, the deadline for them to join you in the UK was 31 December 2020 (or is 31 December 2025 if you are a Swiss national and you get married or form a civil partnership with a non-EU national after 31 December 2020).
If your non-EU family member was not living in the UK by then, they will still be able to apply to join you if you have either settled or pre-settled status, your relationship began before 31 December 2020 and you remain a close family member (i.e. a spouse, civil partner, unmarried partner, a dependent child or grandchild, or a dependent parent or grandparent).
What if your family member is a British citizen?
If your family member is a British citizen (‘Surinder Singh’ applications), the deadline for you to return to the UK depends on your relationship with them.
You must have returned and applied by 29 March 2022 if you are:
- Their spouse, civil partner or unmarried partner and your relationship started before 1 February 2020
- Under 21 years old, and are their child or grandchild
- 21 years or older, and are their dependent child or grandchild, their dependent parent or grandparent
You must have returned by 31 December 2020, and applied by 30 June 2021, if you are their spouse, civil partner or unmarried partner and your relationship started on or after 1 February 2020 or you are another dependent relative.
Do I need to be in the UK to make an EUSS application?
No. In many cases, applications can be made whilst the applicant is outside the UK. Applicants outside the UK can apply using the EU Exit: ID Document Check app. The app can only be downloaded from inside the EU.
Rights of EU nationals and their family members post-Brexit
What are the rights of EU nationals and their family members post-Brexit?
The rights of EU nationals and their family members can be split into two categories:
1. Residence rights during the transition period (31 January 2020 – 31 December 2020)
- Rights of residence during the transition period will not change. EU nationals and their family members are permitted to reside in the UK, work, use the NHS and access benefits (if eligible). EU nationals can also continue to rely on their passport as proof of their right of residence in the UK during this period
- Applicants who are resident in the UK by the end of the transition period will be able to rely on their passport as proof of their right to reside in the UK between the end of the transition period (31 December 2010) and the deadline to apply under the scheme (31 June 2021)
2. Residence rights after the end of the transition period (from 1 January 2021 onwards)
- EU nationals and their family members who are not resident in the UK before 1 January 2021 will need to meet the requirements of the new immigration system which was implemented in January 2021
- Derivative residence rights
What is a derivative rights application?
Derivative rights are rights of residence which are derived from case law of the Court of Justice of the EU (CJEU) as opposed to the free movement directive. These rights are commonly referred to as Chen, Ibrahim/Teixeira or Zambrano rights, taking their name from the relevant CJEU judgment
What is the deadline for making a derivative rights application under the EUSS?
- The deadline to apply based on Chen and Ibrahim/Teixeira derivative rights was 30 June 2021
How do I make a derivative rights application under the EUSS?
Zambrano applicants will need to apply using a paper application form; they cannot apply using the online form. Applicants need to call the EU Resolution Centre (0300 123 7379) to request a personalised application paper form. This will then need to be completed and returned to the Home Office by post.
Criminality, exclusion and deportation decisions
Can I make an application under the EUSS if I have criminal convictions in the UK and/or abroad?
- Having criminal convictions is not a bar to making an EUSS application
- In general, applicants (aged 18 or over) are required to provide information about previous criminal convictions in the UK and overseas that appear on their criminal record in accordance with the law of the State of conviction at the time of the application; failure to do so could potentially result in a refusal on deception grounds
What criminal records checks are made on EUSS applications?
- All applications are subject to checks against the Police National Computer (PNC) and Warnings Index (WI).
- In some cases, the Home Office will also carry out overseas criminal records checks.
What convictions do I need to declare on my EUSS application?
According to the Home Office guidance, if you are 18 or over, you will be asked to declare convictions that appear in your criminal record in the UK or overseas. However, you do not need to declare any of the following:
- Spent convictions
- Warnings (‘cautions’)
- Alternatives to prosecution
I have criminal convictions. Will my EUSS application be refused?
- Not necessarily; it will depend on the facts of the case
- The Home Office states that an applicant may still get settled or pre-settled status even if they have convictions. This will be decided on a case-by-case basis
- An EUSS application will be refused if, at the date of application, the application is subject to a deportation order, a decision to make a deportation order, an exclusion order or an exclusion decision
- An EUSS application may be refused (discretionary grounds) where false/fraudulent representations are submitted, the applicant is subject to a removal decision under EEA Regulations 2016; the applicant has been previously refused admission or their EU Settlement Scheme status has been cancelled or the applicant is a ‘relevant excluded person’ based on conduct committed before or after Brexit date
On what basis can an EU national be deported from the UK?
- This will depend on when the conduct resulting in the individual’s consideration for deportation took place
- For conduct which took place up until the end of the transition period (31 December 2020), liability to deportation will be considered under the Immigration (EEA) Regulations 2016. A final decision on whether to pursue deportation will be subject to a proportionality assessment by the Home Office on the individual facts of the case, taking into account length of residence, family links to the UK and similar. Also, the above assessment will be done under the public policy, public security and public health test as set out in the EEA Regulations 2016
- For conduction which took place after the end of the transition period, UK deportation laws apply. In general there is a presumption in favour of automatic deportation for an offence resulting in a period imprisonment of 12 months or more. Whilst it is possible to rebut this presumption, the possiblity of doing so will depend on the individual circumstances of the case, including the seriousness of the offence and length of sentence
- Refusals, Appeals and Administration Review
My application under the EU Settlement Scheme (EUSS) has been refused. Can I appeal that decision?
- Applications submitted under the EUSS after 11pm on 31 January 2020 attract a right of appeal. Applications submitted before this date do not; the applicant will instead receive the ability to file a request for administrative review.
- The alternative would be to submit a fresh application at any time before the EUSS application deadline (31 December 2020 or 30 June 2021).
What is the difference between an administrative review and an appeal?
- An administrative review is a request to the Home Office to reconsider a refusal decision on the grounds that the refusal is not in accordance with the relevant facts and laws. You can use this remedy if your application was refused on eligibility grounds; or you were granted pre-settled status but think you qualify for settled status. The decision will then be reviewed by a different Home Office caseworker and you will have the chance to submit new evidence
- An appeal is lodged with the First Tier Tribunal and will be heard by an independent Judge. There must be proper grounds on which an appeal can be made. The grounds of appeal concerning applications under the EUSS are that; the decision breaches any right which the applicant has under the EU withdrawal agreement, the EEA EFTA separation agreement or the Swiss citizens’ right agreement or that the decision is not in accordance with Appendix EU, the Family Permit Immigration Rules Appendix EU or the EU Settlement Scheme Travel Permit under Immigration Rules Appendix EU (Family Permit)
Is there a deadline to submit an appeal/administrative review?
- Yes, there are deadlines within which both appeals an administrative reviews must be made.
- Appeals must be made within 14 calendar days of the date the decision was sent if the appellant is in the UK, and within 28 calendar days if they are overseas when the notice of decision is sent.
- Administrative reviews must be made within 28 calendar days after receipt of the notice of decision whether the applicant is in the UK or overseas. The deadline is reduced to seven days where the application is detained in the UK under the Immigration Acts.
Do I have to pay to lodge an appeal/administrative review?
Yes. There is a fee of £140 payable to the First Tier Tribunal to lodge an appeal (£80 for an appeal heard on the papers without an oral hearing). There is also a fee of £80 payable to the Home Office when submitting an administrative review.
If you have an enquiry on your own or a family member’s eligibility to apply under the EUSS please contact our experts in the Bindmans LLP immigration team.