What happens to EU citizens who miss the settled status deadline?

The law

The first thing to say is that they can still apply. The Withdrawal Agreement again:

where the deadline for submitting the application… is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline…

There is Home Office guidance on what counts as “reasonable grounds”. For present purposes, it’s enough to know that you can still secure residence rights if you apply late.

But what is the legal status of someone who has missed the deadline? You would assume that such a person is in the UK unlawfully, unless and until they are granted status under the “reasonable grounds” rule. 

Let’s take the hypothetical example of Christian, an Austrian citizen who moves to the UK in 2015. He doesn’t read or watch any news and has no idea that Brexit affects him, so doesn’t apply to the Settlement Scheme by the deadline.

Scenario 1: no late application

It is now 1 August 2021. Christian still hasn’t applied to the Settlement Scheme. He now has no lawful status in the UK. You would assume that he can be kicked out of the country. Section 10 of the Immigration and Asylum Act 1999 says:

A person may be removed from the United Kingdom under the authority of the Secretary of State or an immigration officer if the person requires leave [permission] to enter or remain in the United Kingdom but does not have it.

In fact there is an argument that Christian is not actually breaking immigration laws. That is because UK immigration legislation is set up to penalise crossing the border without permission or remaining in the UK after that permission expires. Christian never needed permission because of EU free movement laws, so he does nothing wrong by simply staying put, in much in the same way that a baby born in the UK without British citizenship (which is quite common) is not in the country illegally.

While that might make an interesting court case some day, the UK government’s interpretation of the law is simpler: if you don’t have permission to be in the UK, you’re here illegally. 

Scenario 2: late application pending

Let’s say Christian eventually realises that Brexit is a thing. On 1 September 2021, he applies to the EU Settlement Scheme, arguing that he had reasonable grounds for missing the deadline.

From this point on, he may actually have residence rights again. That is because of how Article 18(3) of the Withdrawal Agreement is worded: the protections for someone with a pending application seem to apply to any pending application, even a late one that relies on “reasonable grounds”. So arguably he should now be in the same position as those who applied before the deadline and have a pending application.

That’s our reading of the agreement anyway; that interpretation seems to be shared by the EU. The UK government doesn’t see it this way and there is nothing in the regulations to protect people with pending late applications. Under UK law, late applicants are no different to non-applicants. However, this is mitigated by various policy statements about what will happen in practice to people who miss the deadline. The operational approach is more lenient than the letter of domestic law.

Missed the deadline: brass tacks

The basic rule is that an EU citizen found by someone in authority to have missed the Settlement Scheme deadline will be given 28 days to apply late. We see this first of all in guidance on the fundamental question of kicking people out of the country:

From 1 July 2021, where a person without status under the EU Settlement Scheme is encountered by Immigration Enforcement (or referred to them, e.g. by a Local Authority), the officer will… provide the person with a written notice giving them an opportunity to make a valid application under Appendix EU, normally within 28 days of the date of the written notice.

The existence of this grace period was widely reported last week — the Home Office must have done a press release about it — but in fact it has been in the Settlement Scheme guidance (in pdf format) for months.

During the grace period, “no immigration enforcement action for being in the UK without leave will normally be taken”. The guidance is silent on what happens if the person doesn’t apply within 28 days (or however long the notice gives them). By default, normal immigration enforcement — detention centres and removal from the country — kicks in.

Conclusion

As we have seen, there are various protections in place for EU citizens who have not secured residence rights by 30 June 2021. Whether they will help in reality, especially in respect of those who miss the deadline, is another matter. Guidance is all very well but employers, landlords and civil servants need to both know about and follow the guidance in order for it to be effective. We can expect some not to know about it, and even for some who do know about it to misapply or ignore it.

On paper, at least, people who have applied by the deadline are in the strongest position, followed by people who have missed the deadline but at least applied late. There is no pressing reason to treat those cohorts differently and the process in place to protect the position of people with pending in-time applications could easily be used to protect those with pending out-of-time applications. Once someone has applied late, the incentives in place to drive them to do so have taken their course and there is no remaining need to punish them. It would have been better to allow confirmation of application in or out of time to serve as a temporary residence permit.

People who do not apply at all are in the weakest position. Nobody knows how many people are about to miss the deadline, but there is a broad consensus that it will mostly be people who are vulnerable in some way. People who have not managed to apply to the Settlement Scheme over the course of two and a half years are not likely to get around to it in 28 days. The Home Office has played a blinder in getting so many people signed up to the scheme so far, but can still blow it if it mistreats the minority who have slipped through the cracks.