EUSS late applications by EEA permanent residence holders
EUSS Home Office guidance got updated on 16th January 2024. In their newly published EUSS Caseworker Guidance, Home Office announced some positive change for those late EUSS applicants who hold relevant documents issued under the EEA Regulations.
The Home Office changes to the EU Settlement Scheme (EUSS) announced by Home Office on 17/07/2023 in their Statement of Changes to Immigration Rules 17th July 2023 were addressed in our blog on 17th July.
In short, the new Home Office approach to late EUSS applications submitted from 9th August 2023 onwards, has caused many problems for late applicants. Most of such applicants unfortunately receive decisions that their late application is invalid.
In light of the above, the recent change to the EUSS guidance published on 16th January 2024 is a rare positive news from the Home Office for EUSS applicants. It is therefore worth reading this blog to be aware of the change.
As the law is complex and applied strictly, we recommend seeking legal advice prior to making late EUSS application.
Reasonable grounds for delay in making EUSS application
The starting paragraph in the Home Office EUSS guidance on the ‘Reasonable Grounds for delay in making an application’ is quite optimistic stating as follows: ‘In line with the Citizens’ Rights Agreements, there remains scope indefinitely for a person eligible for status under the EU Settlement Scheme to make a late application to the scheme where, in light of all the circumstances and reasons, there are reasonable grounds for their delay in making their application.’
However, in practice things are not looking so good for late applicants. Since the stricter rules got implemented on 9th August 2023, ‘reasonable grounds’ is a very difficult hurdle to overcome for late applicants.
On a positive note, recently in their updated EUSS guidance January 2024, Home Office announced some positive change for those who already hold a residence document issued under the EEA Regulations.
New exception for individuals with status granted under EEA Regulations
There may be circumstances in which a person has provided information and evidence that they had a reasonable belief that they did not need to apply earlier to the EU Settlement Scheme or a reasonable basis for being unaware that they needed to apply, and in either case they have now applied without further delay. Each case must be considered in light of its particular circumstances and the evidence provided.
Home Office underlines in their EUSS guidance that applicant is more likely to succeed with late EUSS application when multiple factors are present. Relevant factors to take into account, based on credible information and supporting evidence, may include that the applicant:
• is a first-time applicant to the EU Settlement Scheme with a residence document issued under the EEA Regulations, indefinite leave to enter or remain under another route or long continuous UK residence identified by the automated checks of tax and benefits records
• has an EEA national spouse, civil partner or durable partner or other close family member or members who applied in-time to the scheme, but believed that they could rely on a residence document issued under the EEA Regulations
• has a compliant positive immigration history
• has received incorrect advice from an employer or landlord since the end of the grace period on 30 June 2021 as to their right to work or rent in the UK without EU Settlement Scheme status
• has travelled in and out of the UK since 30 June 2021 without being signposted to the scheme.
Example in Home Office guidance – holding EEA Permanent Residence as reasonable ground
‘Example 1: K is an EEA citizen who worked in the UK from 2013 to 2021. In 2019, K applied for and was issued a document certifying the right of permanent residence under the EEA Regulations, as he had acquired the right of permanent residence in the UK under EU law. K misunderstood this to be a status which was not affected by the UK’s exit from the EU, so he did not apply to the EU Settlement Scheme by the 30 June 2021 deadline and continued to work in his existing role. K then left the UK for 2 years to look after his seriously ill mother and came back to the UK in October 2023 and began to apply for work. A potential employer requested evidence of K’s right to work in the UK and he presented his permanent residence document issued under the EEA Regulations. The employer told K that the document was no longer valid for that purpose and that he needed to apply for status under the EU Settlement Scheme, which he did without further delay. These are reasonable grounds for K’s delay in making his application to the scheme.’