The clock is ticking on EU Settlement Scheme - missing the deadline

The Home Office has published guidance on making late applications to the EU Settlement Scheme.

Employers are rapidly having to get their “heads around” the fallout from Brexit and ensuring all their existing EU workers have or in are in the process of obtaining EU settled status is just one of the many headaches. The deadline of 30 June 2021 for EU, EEA and Swiss nationals to apply under the EU Settlement Scheme is fast approaching. However, there is some comfort for those who do miss the deadline on “reasonable grounds” as after almost a year of waiting, on 1 April 2021 the official guidance on late applications was published. In April 2020, the Home Secretary had confirmed that where someone has reasonable grounds for missing the deadline, they will be given a further opportunity in which to apply and reassured that a flexible and pragmatic approach would be taken but no official guidance had been forthcoming until now.

As long as the individual started living (and can prove this) in the UK by 31 December 2020, they will be eligible to make an application to the EU Settlement Scheme which, if successful, will allow them to gain settled or pre-settled status.

The guidance states that for the time being, following 30 June 2021, benefit of the doubt will be given to applicants 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. Any change in approach will be reflected in a revision of the guidance. There is, however, no indication of how long such a “benefit of the doubt” period may last so the advice has to be wherever possible make sure applications are made prior to the deadline of 30 June 2021.

The guidance includes a non-exhaustive list of examples of what constitute reasonable grounds for a late application.

Children (including children in care and care leavers)

Where a parent, guardian or Local Authority fails to apply to the Scheme on behalf of a child under the age of 18, this will usually constitute reasonable grounds for the child to make a late application.

Physical or mental capacity and/or care or support needs

Where a person lacks the physical or mental capacity to apply to the Scheme (or did so in the months before the deadline applicable to them), that will normally constitute reasonable grounds for the person to make a late application. This reason also covers a situation where a person has care or support needs including those residing in a residential care home or those who receive care and support services in their own home.

Serious medical condition or significant medical treatment

Where a person had a serious medical condition (or was undergoing significant medical treatment) in the months before, or around the time of, the deadline applicable to them, that will normally constitute reasonable grounds for the person to make a late application to the Scheme. The guidance specifically includes Covid-19.

Victim of modern slavery

Where the person is a potential or confirmed victim of modern slavery then this will constitute a reasonable ground for a late application.

Abusive or controlling relationship or situation

The nature of the abusive or controlling relationship or situation may take one of several forms. The guidance stresses that a flexible and pragmatic approach must be taken in considering each case in light of its particular circumstances.

Other compelling practical or compassionate reasons

The guidance states that this could include, a person who may have been unaware of the requirement to apply to the Scheme by the relevant deadline or they may have failed to make an application by that deadline because, for example, they had no internet access, had limited computer literacy or limited English language skills or had been living overseas.

Ceasing to be exempt from immigration control

Where a person is exempt from immigration control, such as a serving government minister, and they do not cease to be exempt until after the deadline, this is considered to be a reasonable ground for a late application. The individual will have a period of 90 days from the date of ceasing to be exempt to make an application after which they will need reasonable grounds to make a late application.

Existing limited leave to enter or remain

Where an EEA citizen or their family member resident in the UK by the end of the transition period has limited leave to enter or remain granted under another part of the Immigration Rules which does not expire until after the deadline, this in itself is reasonable grounds for them to make a late application to the Scheme.

Document or status under the EEA Regulations

Where a person subject to the deadline for EEA citizens and their family members resident in the UK by the end of the transition period has a biometric residence card or other residence document issued under the EEA Regulations which remains valid at that date, they may not realise that, with the end of the grace period, they can no longer rely on an EU law right of residence in the UK and need to obtain UK immigration status under the Scheme.

What should employers be doing now?

The guidance gives some comfort to those who are unable to meet the deadline, by allowing late applications on reasonable grounds; however, there are no guarantees and applications should still be submitted prior to the deadline wherever possible and to avoid unnecessary uncertainty. Employers should continue their “comms” about the EU Settlement Scheme and encourage employees to make applications for themselves and any wider eligible family wherever possible. It would appear that the approach adopted may be reflective of the Home Office’s desire to avoid another Windrush scandal and be reflective of the difficulties many face with actually applying under the Scheme due to their vulnerability and circumstance.