Table of contents
- Why is it necessary to apply under the EU Settlement Scheme?
- EU Settlement Scheme Family Permit
- EU Settlement Scheme Pre-Settled status
- EU Settlement Scheme Settled Status
- EU Settlement Scheme Late Applications
- Legal remedies against a refusal of an EUSS application
- How Breytenbachs can assist you in registering for the EU Settlement Scheme
Why is it necessary to apply under the EU Settlement Scheme?
The EU Settlement Scheme allows EEA citizens and their family members to obtain the UK immigration status they will need to continue living, working, and studying after Brexit.
Free movement in the UK ended on 31 December 2020. EU citizens who did not arrive and settle in the UK by 31 December 2020 and who did not apply for either pre-settled status or settled status by 30 June 2021 will have to apply for UK visas that will allow them to live, work or study in the UK.
Persons who register under the Scheme will have access to public services such as healthcare and schools, public funds, and pensions. An EU citizen with settled or pre-settled status under the EU Settlement Scheme will eventually be able to apply for British citizenship once they meet all the requirements.
EU Settlement Scheme Family Permit
Family members can still join a relevant EEA sponsor who was residing in the UK before 31 December 2020 and who has obtained status under the EU Settlement Scheme. If they apply from abroad, they must obtain an EUSS Family Permit.
Family members include spouses, civil partners, durable partners, dependant parents or grandparents, children or grandchildren aged under 21, and dependant children or grandchildren aged over 21. Direct family members can be of any nationality.
The family relationship must have started before 31 December 2020.
The Home Office usually define unmarried partners as those who have lived in a relationship akin to marriage with the EEA sponsor for at least two years unless there is other significant evidence of the durable relationship, for example, evidence of joint responsibility for a child, etc.
You can apply for an EU Settlement Scheme family permit to come to the UK if:
- You are the eligible family member of an EU, EEA or Swiss citizen or a ‘person of Northern Ireland’.
- Your family relationship began before 31 December 2020.
- Your family member was living in the UK by 11 pm GMT on 31 December 2020.
- If applying based on dependency (such as a parent/grandparent or dependant child/grandchild over 21), you will also be required to prove financial and emotional dependency.
Applications for a Family Permit can only be submitted from outside the UK. Non-EEA nationals need to enrol their biometric information as part of their application.
Family Permits are usually issued for six months only and allow the holder to work in the UK. During the Family Permit’s validity period, the holder can enter the UK as often as they wish. Where the holder arrived in the UK on or after 1 April 2021 and wishes to apply to the EUSS as a joining family member, they have 3 months from their first arrival in the UK to submit a valid application for either pre-settled status or settled status.
EU Settlement Scheme Pre-Settled status
EEA nationals and their family members residing in the UK before 30 December 2020 were eligible to apply for pre-settled status if they had lived in the UK for less than a continuous five-year period. Once you reach your five years of residence in the UK, you will have to apply again and receive settled status. The status will allow you to stay in the UK permanently. It is interesting to note that time spent in the Channel Islands or the Isle of Man will count as residence under the EU Settlement Scheme.
If you have pre-settled status, you will be able to work or establish a business in the UK, receive free medical treatment from the NHS, enrol in education or access public funds if you qualify for them
If you enter the UK as a family member of a relevant EEA national, you must apply for pre-settled status within 3 months of your arrival.
Children born in the UK can apply for status under the EUSS in line with their parents. Their application must be completed within 3 months of the birth.
As a result of the Home Office delays, pre-settled status decisions are currently taking up to six months (or longer) to be decided; however, the Home Office does not have a guaranteed time frame. If granted, pre-settled status acts as a temporary status and will be valid for a period of 5 years. You will only lose your pre-settled status if you leave the UK for a continuous period of 2 years or more.
After an application for pre-settled status is lodged (and where applicable, the biometric process has been completed), the Home Office will issue a certificate of application which confirms that a valid application is pending. The application certificate can be used as proof of the applicant’s proof of lawful residence in the UK, including their right to work in the UK.
EU Settlement Scheme Settled Status
You will be able to get Settled Status if you reside in the UK for a continuous period of five years. The 5 year period starts either from the date you first entered the UK (before December 2020) or the date your pre-settled status was issued. To become eligible to apply for settled status, you should not leave the UK for more than 180 days in any consecutive 12-month period during the five years.
Absences of up to 12 months for an important reason will also be considered by the Home Office and may not break the continuity of your residence. This means that a single period of up to 12 months will be allowed if the person was outside the UK because of pregnancy, childbirth, serious illness, study or an overseas posting. The Home Office has also stated that important reasons include absences due to Covid-19 such as being ill with coronavirus; being prevented from travelling because in quarantine, self-isolating or shielding abroad looking after a family member affected by coronavirus; being unable to return to the UK due to travel disruption caused by coronavirus; been advised by your university or employer not to return to the UK, and to continue studying or working remotely from your home country, etc.
If you have been outside the UK for more than 12 months because of Covid-related reasons (as mentioned above), your continuity of residence will be broken, and you will not be able to apply for settled status. However, the period of absence exceeding 12 months will not be counted towards your continuous qualifying period of residence under the EU Settlement Scheme. Your continuous qualifying period will be paused from when your absence reaches 12 months and will resume from the point you return to the UK.
Where you hold pre-settled status, which is due to expire before you can complete the continuous qualifying period of residence required for you to be eligible for settled status, you will be able to apply for a further grant of pre-settled status.
Settled status is equivalent to indefinite leave to remain. It will be lost if you leave the UK for a continuous period of 5 years (but four years only for Swiss nationals and their family members).
It is useful to know that if you are granted settled status and have a child in the UK, that child would be a British citizen, irrespective of the other parent’s immigration status.
EU Settlement Scheme Late Applications
We are pleased to inform our clients that the Home Office have recently amended their caseworkers’ guidance on late applications under the EU Settlement Scheme.
Current Rules for Late Applications under the EUSS
The EU Settlement Scheme was introduced by the Home Office in 2019 to preserve the rights of the EEA nationals and their family members who had been resident in the UK prior to 31 December 2020,
According to the current legislation, EEA nationals and their family members who had lived in the UK for a continuous period of 5 years before 31 December 2020 can make an application for settled status, which is equivalent to indefinite leave to remain. To apply for settled status, applicants needed to primarily show that they had not left the UK for more than 6 months in any continuous 12-month period during the 5-year period. If EEA nationals or their family members have resided in the UK for less than 5 years, they can apply for a 5-year limited leave to remain, known as pre-settled status. People with pre-settled status can make an application for settled status when they reach the 5-year residence.
The deadline for submitting an application under the EUSS was 30 June 2021. Applications submitted after this date are considered by the Home Office at their discretion and approved only if there are reasonable grounds for their delay in making their application. The guidance describes some circumstances in which the Home Office will usually accept that a person has reasonable grounds for their delay in making their application. The list of cases is not exhaustive, and every case must be considered in light of its particular circumstances and the evidence provided.
New Rules on Late Applications under the EUSS
Further to a change in the immigration law introduced in September 2023, the Home Office initially reduced the number of ‘reasonable excuses’ that they would accept to justify a late application. For instance, EEA nationals or their family members who were granted permanent residence before 31 December 2020, but who had failed to submit an EUSS application by 30 June 2021, were no longer considered as having a reasonable excuse which could justify a late application. This has resulted in a sharp increase in the refusal of applications submitted by many people who had lived in the UK for many years and had previously obtained permanent residence but who were simply unaware that they were required to apply under the Scheme,
According to the amended guidance, published on 16 January 2024, the Home Office recognised that 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. In either case, they have now applied without further delay. Relevant factors to consider, 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, 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
- The person 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.
- The person has travelled in and out of the UK since 30 June 2021 without being signposted to the scheme.
Late applications under the EUSS remain complex, and we advise you to contact one of our senior consultants to receive proper legal advice.
Legal remedies against a refusal of an EUSS application
It is always very upsetting when an application under the EU Settlement Scheme is refused by the Home Office.
You would be pleased to know that if a valid EUSS application is refused, it is possible to challenge the refusal decision by lodging an Administrative Review or an Appeal.
How Breytenbachs can assist you in registering for the EU Settlement Scheme
Our team will advise EU nationals and their family members on their eligibility for status under the EU Settlement Scheme. They also assist clients in preparing all the necessary documents and proof that they will need to register and start the application process. If you have any questions about the EU Settlement Scheme or wish to proceed, please contact our team of experts.
