We have previously written here about late applications to the EU Settlement Scheme (EUSS).
However, the Home Office Guidance on these applications has changed and, since 9 August 2023, it has become much harder to prove to the Home Office that an applicant has ‘reasonable grounds’ for applying late.
The new guidance applies to first-time applications to the EUSS made on/or after 9 August 2023 by EU nationals who have not previously applied under the scheme, and who do not have another form of permission to live in the UK, including those made by joining family members who do not meet the three-month deadline to apply to the scheme after entering the UK.
The guidance does not apply to those whose pre-settled status has expired, but who have not yet applied for settled status, for the reasons set out here.
What has changed?
The decision-making process
Before 9 August 2023, a Certificate of Application was issued to late applicants to the EUSS when the application was submitted. The Home Office would then assess the reasons given for the application having been made late alongside the application itself.
Now, an application will be considered in two stages – firstly, the reasons for the application having been submitted after the deadline will be considered.
Caseworkers are no longer required to provide applicants with assistance in submitting evidence supporting their reasons for making an application. They may do if an applicant is particularly vulnerable, but there is no obligation to do so.
If the reasons are accepted, a Certificate of Application will be issued and the application will then proceed to the second stage of consideration where the substance of the application will be decided on.
If the reasons are not accepted, the application will be rejected as invalid. There is no right of administrative review or appeal against a rejection.
The definition of ‘reasonable grounds’ for a late application
The Home Office previously took the approach that late applicants should be given the benefit of the doubt when their grounds for submitting a later application were considered. This is no longer the case. Applicants must now submit evidence supporting their reasons and the reasons that were formerly acceptable have been limited.
For example, it will no longer be automatically acceptable to state that an application was submitted late for the following reasons:
- The applicant was unaware of the requirement to apply to the EUSS by the deadline relevant to them
- They had limited English language skills
- They were digitally excluded
- Other personal circumstances, such as simply overlooking the need to apply or other commitments
- The impact of Covid restrictions on the ability to make an application
- There is no longer a presumption that victims of modern slavery will have reasonable grounds for applying late
Referral to immigration enforcement
Critically, the policy to serve EU nationals encountered by immigration officers with 28-day notices, allowing them time to submit an application before enforcement action was taken has been withdrawn. This means that there is a strong possibility that immigration enforcement action may now be taken against EU nationals who do not have any valid form of leave to remain in the UK.
Implications for employers
The new two-stage decision-making process may have implications for employers with staff members who have not yet applied to the EU Settlement Scheme. Employers are not currently required to carry out renewed Right-to-Work Checks on existing EU national employees who have been working for them since before 1 July 2021 However, if it comes to light that any EU national staff members have not yet applied to the EUSS, the Home Office Right-to-Work Checks guidance remains that an employer should signpost employees to make an EUSS application within 28 days if it appears that there are reasonable grounds for them doing so after the deadline.
However, whereas prior to the new late applications guidance being issued, an employer could rely on a Certificate of Application being issued immediately, protecting the EU National’s right to work, and the employer’s right to employ them, this may now take some months to be issued.
It is, unfortunately, not yet clear whether an employer will now be required to terminate the staff member’s employment if a Certificate of Application is not issued within the 28 days.
In light of the new guidance, it is now more important than ever to act fast if you are an EU national who has not yet applied to the EUSS, or if you employ EU national staff who have worked for you from a date before 1 July 2021.
If you are an employer, you may wish to establish whether all EU national staff have applied to the EUSS. If they have not, you should advise them to do so as soon as possible.
It is very important that you consider carefully the first stage of the application in which you will need to set out your reasons and give evidence, for applying late to the scheme. It will no longer be enough simply to assert that you have reasonable grounds for applying late unless you have documents that support that assertion.
We strongly recommend that all potential applicants take legal advice before applying to minimise the possibility that their applications are rejected.