Late Applications to the EU Settlement Scheme

Since the EU Settlement Scheme opened to the general public in March 2019, over 5 million EEA nationals and their family members have been granted pre-settled or settled status in the UK. However, it is estimated that there are a number of EEA citizens and their family members in the UK who have yet to secure their status under the scheme.

The deadline for making an application to the EU Settlement Scheme was 30 June 2021. It is, however, still possible for someone who is eligible under the EU Settlement Scheme to make a late application where, when considering their circumstances, there are reasonable grounds for their delay in making an application.

What constitutes reasonable grounds for the delay in making an application?

The Home Office had previously taken a flexible approach to late applications, looking for reasons to grant applications and accepting a number of reasons for a late application as constituting reasonable grounds. Such reasonable grounds that used to be accepted included if someone was unaware of the deadline or the requirement to apply, or if someone who had lived in the UK for a long time or held an EEA Regulations document did not realise that they needed to apply.

However, this all changed in August 2023 when the Home Office position on what constitutes reasonable grounds for a late application changed drastically, making it much more difficult to make a successful late application to the EU Settlement Scheme.

Previously accepted reasonable grounds for a late application, such as Covid-19 and someone simply overlooking the need to apply before the deadline, or failing to get around to applying by the deadline due to their personal circumstances, are no longer accepted. A much stricter interpretation has now been adopted by the Home Office. Examples of reasonable grounds that continue to be accepted have a high threshold – such as where the person applying lacked physical or mental capacity to do so; or has significant ongoing care or support needs or a serious ongoing medical condition; or from people in abusive relationships. Late applications from children ought to continue to be accepted.

A late applicant to the scheme must also now show reasonable grounds for the delay in making their application as a whole, and not simply reasonable grounds for not applying before the deadline of 30 June 2021.

It is important to be aware that this applies to not just EEA citizens and their family members in the UK, but also to joining family members who have arrived in the UK on EU Settlement Scheme Family Permits and who have missed their deadline to apply for pre-settled status.

A change in process

The Home Office have also changed the way in which they considered applications. Since August 2023, the Home Office now consider whether or not an applicant has reasonable grounds for their delay in making an application to the EU Settlement Scheme as the starting point before moving on to consider whether someone is eligible for pre-settled or settled status. If it is not accepted that someone has reasonable grounds for their delay in making their application, the application is rejected and the Home Office do not even consider whether the person is eligible for pre-settled or settled status.

From August 2023 onwards, it is reported that the majority of late applications to the EU Settlement Scheme were being rejected on the basis that the Home Office were not satisfied that people had reasonable grounds for their delay for making an application.

A very recent further development as of January 2024

The Home Office have again updated their guidance on the EU Settlement Scheme on 16 January 2024. It appears that some concessions have now been made in terms of what will be accepted as reasonable grounds for a delay in making an application - opening the doors again somewhat to certain late applications. Now, where someone has a reasonable belief that they did not need to apply earlier to the EU Settlement Scheme, or has a reasonable basis for being unaware that they needed to apply (and who now applies without delay) may be accepted as having reasonable grounds for failing to apply earlier.

This will be a case-specific assessment by the Home Office in light of an applicant’s individual circumstances, and based on the evidence provided. The Home Office have indicated in their most recent guidance that they will take a number of different factors into account here, including but not limited to, a person’s immigration history, whether a person has already been signposted to the EU Settlement Scheme when travelling into and out of the UK, and whether the person previously held pre-Brexit EEA Regulations documents or has lived in the UK for a significant period of time.

It remains to be seen, however, how the EU Settlement Scheme implement this new guidance in practice and time will tell whether, in practice, we see a softening of the previous stricter approach.

Submitting a late application to the EU Settlement Scheme

Applicants usually only get one chance at a late application to the EU Settlement Scheme and demonstrating reasonable grounds for a delay in submitting an application is complicated. It is therefore more important than ever that any late application to the EU Settlement Scheme is very well prepared, and is accompanied by supporting evidence.

If you are an EEA national or the family member of an EEA national and have been residing in the UK since before 31 December 2020, an EEA national who has resided in UK for 5 years previously, or are a joining family member, and you have yet to secure your status under the EU Settlement Scheme it is important to seek advice as to your eligibility and make a late application without delay.

If you would like any advice or assistance with a late application to the EU Settlement Scheme, or wish to discuss whether you are eligible to make an application or indeed challenging a decision to treat a late application as invalid by way of judicial review, please do not hesitate to contact us and one of the experienced solicitors in our immigration team will be happy to assist you.