Changes announced for late EUSS applications: what you need to know

What are the changes to the EUSS?

Two recent dates were especially meaningful ones in relation to the EU Settlement Scheme; 17^th July 2023 and 7^th September 2023 saw the publication of new Statements of Changes to the UK Immigration Rules. Several modifications to the Rules on those dates were connected to the EUSS.

Below, we have summed up some of the notable recent developments:

• Individuals with pre-settled status will automatically have their status extended by two years

The altered Immigration Rules laid out in Parliament on 17^th July provided confirmation that with effect from September 2023, people holding pre-settled status under the EUSS will be given an automatic two-year extension to their status before it expires, presuming they have not obtained settled status.

The extension, in a Home Office-automated process, will be reflected in the given individual’s digital status via their UK Visas and Immigration (UKVI) account, with the department notifying the individual of this extension directly by email.

• Eligible pre-settled individuals will be automatically upgraded to settled status

The Home Office also said on 17^th July that it intended “to take steps to automatically convert as many eligible pre-settled status holders as possible to settled status once they are eligible for it, without them needing to make an application.” Automated Government checks will be carried out to establish affected individuals’ ongoing continuous residence in the UK.

• Tighter rules have been put in place for late applications under the EUSS

Since 9^th August 2023, what constitutes a “reasonable excuse” for submitting a late application has switched from being an eligibility requirement, to a validity requirement.

For EUSS applications currently being received, then, whether an applicant has a “reasonable excuse” for applying late is being assessed as a preliminary issue, and supersedes the merits of the application itself. In the event of the Home Office rejecting an application as invalid, the applicant will not have any right of appeal or administrative review.

• The EUSS Family Permit route has now closed for Surinder Singh and Zambrano applicants

Another major change, on 8^th August 2023, was the closure of the EUSS Family Permit route for relatives of qualifying British citizens coming back to the UK after exercising their freedom-of-movement rights in the EEA or Switzerland (these are referred to as “Surinder Singh” cases).

The EUSS Family Permit route has also ceased to be available to primary carers of British citizens (“Zambrano” cases). It should be noted that these routes will continue to be open to individuals who are already on them.

An individual granted an EUSS Family Permit on the basis of a Zambrano or Surinder Singh application submitted by 8^th August 2023 will also be entitled to come to the UK and apply to the EUSS.

• The term “dependent relative” has had its definition altered

Under Appendix EU, the definition of “dependent relative” has been amended to provide for the adult child of a durable partner. This means they will continue to qualify if they were previously granted leave in this category when below the age of 18.

• The right of administrative review has been removed

This is a disheartening change for impacted individuals, but nonetheless an important one to know about; with effect from 5^th October 2023, there is no longer a right to an administrative review in relation to EUSS refusal and cancellation decisions made on or after the aforementioned date.

In accordance, however, with the Citizens’ Rights Agreements (CRAs), the right of appeal against these decisions has been kept in place.

• The existing policy position on dependency has been clarified

It is already a Government policy position that in further applications under Appendix EU, it is not required to provide evidence of dependency of individuals who have been granted pre-settled status as a dependent partner or child.

However, some minor technical changes have been made to help make this clearer.

Is it too late to apply for the EU Settlement Scheme?

Most people were required to apply to the EU Settlement Scheme by a deadline of 30^th June 2021. However, an individual who has pre-settled status, and who is seeking to apply for settled status, is not required to comply with this deadline.

There are also certain other individuals who are permitted to apply late under the EUSS. If you or your family are from the EU, Switzerland, Norway, Iceland, or Liechtenstein, you will still be able to apply, provided that you or a relative were living in the UK by 31^st December 2020.

As a prospective late applicant to the scheme, you must also either:

• Satisfy one of the criteria for a later deadline to apply
• Have “reasonable grounds” for applying now, rather than by the 30^th June 2021 deadline or during the intervening time since the passing of the deadline

The Home Office has recently put in place stricter guidance for what counts as “reasonable grounds” for making a late EUSS application. This guidance has set out a number of example scenarios as likely to constitute “reasonable grounds” for submitting a late application, including:

• The applicant being exempt from immigration control – for example, because they work for an international organisation or the diplomatic service of a foreign government
• The applicant having existing limited leave to remain that expires after the 30^th June 2021 deadline (i.e. they are presently in the UK on a different visa type), provided that they apply prior to their existing leave expiring
• The applicant having been a child, with their parent, guardian, or local authority having failed to submit an in-time EUSS application on their behalf
• The applicant having lacked the physical or mental capacity to apply to the EUSS since the deadline to which they were subject, or having had significant, ongoing care or support needs since that time
• The applicant having had a serious medical condition or significant medical treatment, but they will be expected to be able to explain the entirety of any period of delay
• The applicant having been initially prevented from submitting a EUSS application due to being a victim of domestic violence or abuse (or the family member of such a victim), or having been otherwise in a controlling relationship or situation that prevented them from applying by the deadline to which they were subject
• In certain circumstances, the applicant having been released from prison after the EUSS deadline to which they were subject.

The Home Office has said that its list of possible “reasonable grounds” is not exhaustive. It is also important to note that the above are only summaries of potentially acceptable grounds for a late application. So, if you do wish to submit a late application to the EUSS, you should seek further advice and guidance from suitably qualified experts in UK immigration law.