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18 October 2023

When is a right to permanent residence not permanent?

5 mins

The EU Settlement Scheme is taking a new hardline approach to holders of permanent residence documents.

An apparently minor change to the Immigration Rules and caseworker guidance has become a major problem for people with permanent residence documents trying to apply to the EU Settlement Scheme (EUSS).

The EUSS is now routinely rejecting applications from holders of permanent residence documents – ‘documents certifying permanent residence’ or ‘permanent residence cards’ – on the basis that they are “out of time”, marking a major change in approach towards people in this category.

The Withdrawal Agreement, the EUSS and late applications 

The UK government originally rolled out the EUSS in 2018 to reflect requirements under the UK-EU Withdrawal Agreement, which was aimed at protecting the rights of EU nationals and their family members living in the UK. It was a requirement of the Withdrawal Agreement that people holding permanent residence documents must be allowed to ‘exchange’ them for new status under the EUSS.

Although the UK was permitted to set a deadline for making applications under the scheme – which in this case was 30 June 2021 – the Withdrawal Agreement required the UK government to ‘assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline’.

Until 9 August 2023, the Home Office’s instructions to EUSS caseworkers considering late applications was that holding a valid permanent residence document should usually constitute ‘reasonable grounds’ in such cases. As such, holders of permanent residence documents applying to the EUSS between 1 July 2021 and 8 August 2023 were generally given settled status without too much difficulty.

What has changed?

However, this recommendation was cut from new guidance published on 9 August 2023, with the result only now becoming clear as these applications work their way through the system. We personally know of or have been told of at least 16 applications from people holding valid permanent residence documents that have been refused out of hand in the last few weeks.

This situation has been made significantly worse by a change in the Immigration Rules that blocks people in this situation from appealing.

The change, which also took effect on 9 August 2023, means that a decision on whether there are reasonable grounds for a late application is now treated as a preliminary “validity” point, against which there is no right of appeal. Previously, such decisions were considered within an overall assessment of ‘eligibility’ for EUSS status, meaning refusals could be appealed.

As such, the only way forward for people in this situation now is either to persuade the EUSS to reconsider its decision or to start judicial review proceedings.

Who is affected?

This development will affect anyone who has not yet made an application to the EUSS and who holds either a ‘document certifying permanent residence’ or a ‘permanent residence card’. Pre-Brexit, the government used to issue these documents to EU nationals and their non-EU family members to show they had acquired the right to reside permanently in the UK under EU law.

Unfortunately, many people in this category have been entirely unaware of the fact they needed to apply to the EUSS, understandably believing that holding a UK government document saying they have the right to reside permanently in the UK meant exactly that.

The government has invested a huge amount in publicising the need for EU citizens to apply to the EUSS to protect their status. But the campaign has not focused on the family members or former family members of EU citizens and has made no real mention of the need to apply even if you already hold a permanent residence document.

In fact, the EUSS website expressly says that ‘You may be able to stay in the UK without applying – for example, if you’re an Irish citizen, or you already have indefinite leave to enter or remain’. Technically, permanent residence and indefinite leave are not the same thing, but it is a very narrow, legal distinction of which most people would be unaware.

We know of people who thought they had ‘indefinite leave’ and so the EUSS did not apply to them, as well as non-EU citizens who obtained permanent residence documents years ago, who had no idea they were covered by the Scheme.

Holders of these such documents have frequently used them for work and travel purposes for years, further reinforcing their assumption that they continued to have the right to reside in the UK.

Put simply, the reason that such people did not apply to the EUSS was that they had no idea they were required to do so – a reasonable belief supported by the fact they held a document confirming their right to live permanently in the UK.

So long as the EUSS was allowing people to exchange their permanent residence documents for settled status, there was no real loss. However, this latest development marks a significant change in that approach. It is already having a devastating impact on the lives of those affected, which, without robust legal intervention, will affect their future in the UK.

Our Personal Immigration, Asylum and Nationality team are able to guide you through the changes to the Immigration Rules. Please get in touch by submitting an enquiry form here.

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