Consequences of missing the EU Settlement Scheme deadline

If you are planning to apply for the EU Settlement Scheme there is an application deadline, meaning that if you miss the deadline to apply for a post-Brexit status you will be unlawfully resident in the UK. It is not clear what will happen to people who have not made an application by the deadline. It is possible that the government may remove them from the UK. 

According to the Home Office people who miss the deadline for “a good reason” will still be able to apply. So far, no details have been given as to what makes a good reason.

In the Home Office guidance covering late applications from non-EU nationals one can find a restrictive good reasons policy. Examples include hospital admission for emergency treatment or a close family bereavement.

This restrictive policy applies to migrants who already know the conditions of their immigration status, including the date on which it expires. The situation with the EU citizens who have come to live in the UK, some of them many years ago, under free movement law and whose right to live in the UK was never conditional on a status being granted by the Home Office is very different. 

Under these strict rules, Settlement Scheme applicants will have to account for and possibly provide evidence for their delayed applications, even though they may never have been aware of the need to apply for settled status. Potentially, such people, may be denied their access to the NHS, benefits, employment and accommodation as well detained and even sent out of the country. It may also hinder their application, as unlawful residence is considered a criminal offence in the UK.

Any Home Office policy on late applications should be in the spirit of its June 2018 statement of intent, according to which securing EU citizens’ rights is and always has been a top priority. Penalising those who fail to apply within the deadline can hardly been seen as a way to secure these top priority rights.

An alternative approach is to make the EU Settlement Scheme a declaratory scheme rather than by way of application. Organisations such as JCWI and the3million are campaigning for a declaratory scheme as a way to automatically guarantee the right to remain, so people need only register and not apply to prove their residence status. Under such a scheme, if the EU residents miss the registration deadline they will be considered as undocumented and not unlawful. This would be the only sure way to avoid another Windrush scandal.