Important changes to the way late EUSS applications are treated

The Home Office has changed the immigration rules and the guidance on making applications to the EU Settlement Scheme, taking a far more restrictive approach to late applications than has been the case previously.

As most readers will be aware, unless applying as a joining family member, applications to the EU Settlement Scheme were supposed to be made by the deadline of 30 June 2021.

The Home Office test for assessing a late EUSS application is whether there are ‘reasonable grounds’ for the late application. The Home Office policy for late EUSS applications was first fully set out in version 11.0 of the EUSS caseworker guidance back in April 2021, complete with a set of non-exhaustive examples that would meet the reasonable grounds threshold.

Examples of good reasons for missing the deadline included applications for children where a parent or local authority was unaware of the deadline, medical conditions that prevented an application being made, persons suffering abusive or controlling relationships, victims of trafficking, and modern slavery situations. Crucially the guidance included a catch-all compelling or compassionate clause that included a lack of awareness of the EUSS, or an incorrect presumption that the person concerned erroneously thought they did not need to apply.

Why the change in approach?

Undoubtedly this approach to late applications was positive and allowed many eligible late applicants to obtain the grant of status they were entitled to. However, a problematic byproduct for the Home Office was that persons who do not meet the eligibility requirements – for example EU citizens who moved to the UK after free movement ended – could make a free application and obtain permission to work, rent, get free access the NHS and so on, while the application was being processed.

Although these ineligible applicants will ultimately receive a refusal decision from the Home Office, during the time their application is being processed they are issued with a certificate of application which is used to prove the right to work etc. The Home Office view is that despite the significant numbers of successful eligible late applicants, the EU Settlement Scheme was increasingly being abused by ineligible applicants and therefore something needed to be done.

What has changed?

The Statement of Changes in Immigration Rules HC 1496 added a ‘required date’ clause at (e) to the validity assessment of EU9 of Appendix EU. As explained in the explanatory memorandum and parliamentary statement, this means that from 9 August 2023, the decision on whether to accept a late application became a ‘standalone’ decision taken at the initial validity stage, before any assessment of suitability or eligibility takes place.

Only those applications the Home Office accepts have reasonable grounds for missing the deadline are permitted to be fully processed for suitability and eligibility. These ‘valid’ applications will receive a certificate of application to prove their rights whilst the application is under consideration.

Late applicants deemed not to have sufficient justification are rejected without any consideration of suitability and eligibility; there is no right of administrative review or appeal against the decision to reject a late application. The validity decision on the reasonable grounds is supposed to take a matter of days, but in some cases could take longer if the Home Office has to engage with the applicant to obtain more information and / or evidence about their late application reasons.

Crucially, the change in approach means that rejected late applications – notwithstanding the description – are not actually considered applications as far as the Withdrawal Agreement is concerned. This is because as per Article 18(1)(d) cited above, the requirement is to allow a person to submit an application if there are reasonable grounds for missing the deadline. Where there are no reasonable grounds as judged by the Home Office, there is no application to speak of.

What happens if the late application is rejected?

As noted already, by making the reasonable grounds decision a validity decision, the Home Office has removed the appeal right that would have been provided to a late applicant refused at the eligibility stage. We know the Withdrawal Agreement allows for the Home Office to assess the late application reason before progressing to consider suitability and eligibility, but what about the lack of appeal right? This is controversial as the lack of appeal means rejected late applicants may never be able to get status, irrespective of meeting the eligibility conditions.

What is reasonable or not has an element of subjectivity and in the context of such a significant decision and outcome, there is a clear case for a right of independent review from the Tribunal. There is no reason why the Home Office could not have introduced a two-stage process with an appeal right provided for both decision stages (i.e. an appeal if the late application is rejected, and an appeal if the late application is accepted but rejected on suitability or eligibility grounds). Instead, the Home Office only allows for Tribunal appeal at the second stage, meaning that a rejected late applicants can only challenge that decision by judicial review.

Conclusions

It is likely that the Home Office intention to bar ineligible persons from obtaining certificates of application will be achieved. It would be surprising if someone ineligible for EUSS status was able to present a compelling case for having a late application accepted for processing. The worry is about the cost of this policy to those who are eligible for status but for the fact they are making a late application.

Reportedly there have been many cases of eligible late applications with seemingly reasonable grounds for applying late, being rejected by the Home Office. Some of these rejected applications have been reconsidered by the Home Office following intervention from Grant Funded Organisations and other representatives, in some cases involving pre-action work. However, it seems that many rejected late applicants, especially those who are unable to engage with qualified advisers who may be highly vulnerable, will find themselves permanently locked out of the EUSS irrespective of the years they have spent living in the UK.