EU citizens applying for leave late must prove “reasonable grounds” for missing government deadline by Charlotte Rubin

At Seraphus and across the immigration law sector, we have been stressing one date for EU citizens living in the UK: 30 June 2021, the end of the Grace Period, and the deadline set by the government for EEA citizens and their family members to apply to the EU Settlement Scheme (EUSS) and remain in the UK lawfully thereafter.

This fast-approaching deadline is important for all EU and EEA citizens living in the UK. From 1 July 2021, any EEA citizen living in the UK without settled or pre-settled status under the Scheme will be here unlawfully and the hostile environment policies will start kicking in against them. This means that those who fail to apply by the deadline will be unlawful residents from 1 July 2021. The Home Secretary confirmed a few months ago that late applicants may still get status, but that this will broadly be at the Home Office’s discretion for those with “reasonable grounds to apply late.” Clarity on what grounds might be considered reasonable was lacking, until this morning, when the Home Office released its official guidance on how it will deal with late applicants to the Scheme.

Preliminarily, it should be stated that though the deadline for the EUSS is set on 30 June 2021, the Scheme was never going to fully close on that date. It will remain open for years to come for those with pre-settled status (EU citizens who applied to the EUSS based on less than five-year residency in the UK) to upgrade their status to settled status once they reach the five-year mark. The deadline for those with pre-settled status to apply for settled status is the date of expiry of their pre-settled status, usually five years from the day of the grant of status. The guidance confirms that the Home Office will send reminders to those granted pre-settled status to apply for settled status before their pre-settled status expires.

So, late applicants can be those who fail to meet the deadline of 30 June 2021 to apply for initial status, but also those who miss their personal deadline to “upgrade” their status in the years to come. All late applicants will have to show that they had “reasonable grounds” for failing to meet the deadline. Reasonable grounds are expanded upon in the guidance, which states that caseworkers must “take a flexible and pragmatic approach to considering, in light of the circumstances of each case, whether there are reasonable grounds for the person’s failure to meet the deadline applicable to them under the EU Settlement Scheme.” It also states that “For the time being, following 30 June 2021, you will give applicants the benefit of any doubt in considering whether, in light of information provided with the application, there are reasonable grounds for their failure to meet the deadline applicable to them under the EU Settlement Scheme, unless this would not be reasonable in light of the particular circumstances of the case.” This all points to a generous approach by the Home Office when assessing late applications.

The guidance provides examples of reasons which may be considered reasonable grounds to miss the deadline of 30 June 2021. These examples include where the applicant as care or support needs, lacks the physical or mental capacity to make their application, is undergoing significant medical treatment around the time of the EUSS application deadline. The onus is on the applicant to provide evidence that one of these situations applies to them, for example by providing medical evidence from a doctor, health professional, legal representative or other appropriate third party confirming the circumstances. Other situations laid out in the guidance which may constitute reasonable grounds for missing the deadline include victims of modern slavery, those in abusive or controlling relationships, and a wide discretion for “other compelling practical or compassionate reasons” as to why someone had to make a late application for the Scheme. The first example stated is quite an important one, as it refers to persons who may not have been aware of the requirement to apply to the EUSS by the relevant deadline, including those with limited digital literacy or English language skills, or those who believed the EUSS did not apply to them. Here, the guidance also specifically refers to those who are unable to apply or provide the required evidence in time due to the COVID-19 pandemic, and emphasises that a flexible approach must be taken to those applications.

Importantly, all these reasons will also normally constitute reasonable grounds for a late application to the EU Settlement Scheme in respect of a child or other dependent family member who was reliant on the person to make an application to the scheme on their behalf.

A general rule is included in the guidance for applicants who are exempt from immigration control beyond 1 July 2021 (e.g. family members of EU citizens on family visas, or those with a permanent residence card expiring after 1 July 2021). Those applicants have 90 days from the date of their leave expiring to apply to the Scheme without having to fulfil the reasonable grounds requirement. Beyond that 90-day period, they can still make a late application to the Scheme, but it will only be accepted if they satisfy the reasonable grounds requirement.

The longer an applicant waits to apply after their deadline expires, the higher the threshold will be for them to show that at the date of application, they have reasonable grounds for their failure to meet that deadline. There are some exceptions to his mentioned in the guidance, such as when a person established that a parent or guardian failed to make an application on their behalf years earlier when they were a child. Combined with yesterday’s judgment in W and Re Z (EU Settled Status for Looked After Children) [2021] EWHC 783 (Fam) where the High Court ruled that social workers can get settled status for EU children in care without parental consent, it seems like government is made aware that making the Settlement too restrictive will backfire as thousands of UK residents, and especially vulnerable groups such as children, are at risk of missing the deadline.

Overall, the guidance is more lenient than many practitioners were fearing. It emphasises that the Home Office is looking to grant and not refuse status (for now), and that they will give the benefit of the doubt to late applicants at least for the time being. The guidance rightly highlights that children, the elderly and incapacitated and those in controlling domestic or employment relationships are at a higher risk of missing out and need specific attention, and accepts that there are a wide variety of compassionate grounds due to which an applicant may miss the application deadline. These are welcome developments. However, as is often the case, the late applicants will be at the mercy of Home Office discretion (following the guidance) and will therefore not have an automatic right to remain as they do if they apply before 30 June 2021. Additionally, even if a late applicant proves they had reasonable grounds to miss the deadline and is granted status, they will still be unlawfully resident for duration of the period between 1 July 2021 and the conclusion of their application, with all the consequences that entails. The deadline therefore remains of paramount importance.

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