Changes to treatment of some late applications to the EU Settlement Scheme in new guidance

The Home Office has introduced some flexibility for some categories of people who are applying late to the EU Settlement Scheme, after the rules were severely tightened in August last year.

The new version 22 of the guidance for caseworkers on the EU Settlement Scheme applies to decisions made from 16 January 2024 and also makes some other changes.

Changes for those who hold permanent residence and are applying late

In the section “Examples of reasonable grounds” for making a late application, further explanation and two new examples have been given under “Circumstances which will not generally constitute reasonable grounds for delay in making an application”. This provides for situations where the person had a “reasonable belief” that they did not need to apply or “reasonable basis” for being unaware that they had to do so. The application must have been made without further delay once they became aware of the need to make it.

The first example provided in the guidance is where a person was issued with a permanent residence document under the EEA Regulations and did not realise that this was affected by Brexit. He then left the UK for two years to look after a seriously ill parent. When he returned to the UK he showed a potential employer his permanent residence document for a right to work check and was told this was no longer accepted and he needed to apply under Appendix EU, which he then did.

The second example given is of a non-EEA citizen who has lived in the UK since 2007. She is dependent on her son and his EEA citizen wife and speaks little English. Her permanent residence card expired in December 2023 and when she went to renew it she was told this was not possible and she needed to apply under Appendix EU, which she then did.

Concession for certain children of a ‘relevant EEA family permit case’

There is a new section in the new guidance called “Concession for certain children of a ‘relevant EEA family permit case’”. This applies where the parent is a dependent relative who meets the definition of a ‘relevant family permit case’ and the child was born outside the UK either:

• before 11 pm on 31 December 2020 and a valid application for an EEA family permit was not made under the EEA Regulations before then, or
• after 11pm on 31 December 2020 and so it was not possible to make such an application before then

Where this applies and the child was granted an EU Settlement Scheme family permit to either accompany their parents to the UK or join them there, an application can be made for the child as a family member (dependent relative) of a relevant EEA citizen.

They will then be deemed to meet the necessary requirements, although the application must be made “as soon as reasonably practicable” and generally within three months of arrival to the UK.

Conclusions

Time will tell if these changes are enough to stem the increasing number of media reports of EEA nationals who are experiencing difficulties as a result of late applications, submitted under the EU Settlement Scheme.