As of 30 June 2021, some 5.4 million individuals have had their applications decided under the EU Settlement Scheme. 30 June 2021 was the general deadline to register for the Scheme. However, for various reasons, including the coronavirus pandemic, large numbers of individuals have missed the deadline.
Thankfully, recently published guidance around late applications seems generally helpful. Whilst you need to have ‘reasonable grounds’ for the late application, the published policy sets out a considerable array of grounds and examples which could apply, and applicants are to be given the ‘benefit of the doubt’.
This article looks at how to make a successful late application. We also look at how you might be able to show you have maintained your continuity of residence, despite an extended absence from the UK.
Who does the deadline not apply to?
Before we dive into this issue, check that this deadline applies to you. The 30 June 2021 deadline does not apply to the following people:
- ‘Joining Family Members’ – if you are the close family member of an EU national who has been granted status under the EU Settlement Scheme, then the 30 June 2021 may not apply to you. However, your relationship must have been ‘formed’ by 31 December 2020. Close family members include spouses, civil partners, unmarried partners, and children. In the case of spouses or civil partners, the marriage or civil partnership must have been contracted by 31 December 2020.
These people have a separate deadline – to register for the EU Settlement within three months of arrival in the UK.
- ‘Family Members of a Qualifying British Citizen’ – if you are the Family Member of a Qualifying British Citizen (aka the Surinder Singh route’) – then the deadline to arrive in the UK is 29 March 2022. These people must also register within three months of arrival. Read more about this complex route here.
Applying late
General principles
The key to a successful application is demonstrating ‘reasonable grounds’ for being late. Before we look at that, it is worth considering some of the underlying principles which a Home Office case worker should adhere to, when considering your late application:
The current guidance strikes a liberal tone regarding late applications, in keeping with the general tenor of the EU Settlement Scheme:
- Caseworkers should look to grant status rather than find reasons to refuse and adopt a ‘flexible and pragmatic approach’.
- Caseworkers should give applicants the ‘benefit of the doubt’ when considering reasonable grounds.
The guidance makes it clear that the greater the delay, the harder it will generally be to show you have ‘reasonable grounds’. Furthermore, the guidance makes it clear that whilst, for the time being, individuals should receive the ‘benefit of the doubt’ when having their reasonable grounds considered, this could well change in the future. So: best to get your application in without delay.
Do you have reasonable grounds?
The Home Office gives examples of ‘reasonable grounds’ in its guidance – ‘grounds’ here means your reason or argument for being late. You should try to see if any your circumstances match these grounds, and argue on multiple grounds where possible.
There are grounds relating specifically to children and those with ‘physical or mental capacity and/or care or support needs’, as well as grounds connected with abusive relationships and victims of modern-day slavery.
There is also a ground based on a ‘serious medical condition or significant medical treatment’. If you are making a ‘COVID-type argument’, then this ground seems to be aimed at people who suffered significantly, including those hospitalised, bedbound or ‘unable to perform day-to-day tasks’.
I suspect many will fall outside of, or fall short of, the above grounds, and this blog will not focus on these. In practice, more people will try to tie their situation under the Home Office heading of ‘Other compelling practical or compassionate reasons’, so I will look more closely at this now.
‘Other compelling practical or compassionate reasons’
As it is currently written, the ground of ‘Other compelling practical or compassionate reasons’ seems wide-ranging. There are lots of examples given under this section, so it is well worth a read to see if your own situation can match one of them. If it does, then you should have a decent case. Here are some of the examples:
- The Home Office seems willing to consider applications where an individual was unaware of the deadline or was aware of the deadline but nonetheless failed to meet the deadline (which seems to cover everyone!). However, it seems that mere ignorance or failure to act is not enough on its own. They also want an additional mitigating factor. Mitigation includes:
- Lack of internet access or computer literacy
- Lack of language skills
- Lack of permanent accommodation
- Having complex needs and not being aware of available support
- Being hampered in accessing support due to COVID restrictions
However, I want to highlight some other interesting examples which seem reassuringly generous.
The first of these will apply where there is ‘evidence that the person was outside of the UK’ in the months leading up to 30 June 2021. So, if you were overseas during this period, then this alone appears sufficient to make out the ground. If you are outside of the UK, you might have the other problem of needing to show you have not lost your continuity of residence. But again, there are potentially helpful provisions, which I deal with below.
Second, the guidance gives the example of not knowing about the deadline due to ‘personal circumstances’ – answers on a postcard as to what counts as ‘personal circumstances’, but this sounds broad. Don’t we all have personal circumstances of some sort? We will have to see what kind of bar is being set here, but this appears to invite a range of potential factors.
Third, there is the mitigating factor of being ‘hampered in accessing the support available to help them apply by restrictions associated with the COVID-19 pandemic’. Again, being ‘hampered’ does not set the bar too high here. This could be a potential way to bring in your COVID-related argument.
Finally, there is the example given of ‘they have lived in the UK for a significant period of time and having done so did not realise they must still secure status under the EU Settlement Scheme’. So, if you are a long-term resident here then that alone might be a sufficient justification for not knowing about the deadline.
In short, if you did not know about the deadline, or failed to act, there might well be a ready-made example on which you can pin your case.
Continuity of residence and COVID
Finally, a quick word on lengthy absences due to COVID. We have seen above that being abroad can, on its own, be sufficient grounds for a late application. But if you are abroad and missed the deadline, you may well face another hurdle.
In order to keep your continuity of residence, the general rule is that you cannot have had an absence of more than six months in any 12-month period. So, what if you were in the UK prior to 1 January 2021 (the deadline to get residence for the Scheme) but have since been residing abroad for more than six months?
Help may come in the form of another concession, this time a COVID concession. The EU Settlement Scheme already had a provision allowing a single absence in excess of six months for an ‘important reason’. The Home Office concession now gives wide discretion to allow absences which relate to COVID.
This is really an area deserving of a separate blog, but in brief, reasons include the near catch-all provision of:
absent from the UK for another reason relating to coronavirus, for example, you left or remained outside the UK because there were fewer coronavirus restrictions elsewhere; you preferred to work or run a business from home overseas; or you would have been unemployed in the UK and preferred to rely on support from family or friends overseas
There is even COVID guidance which permits absences in certain circumstances in excess of 12 months.
In short, if you have been abroad and missed the deadline and are worried about your potential loss of continuity of residence, you might well be able to forge a path through to the Scheme.
Final thoughts
It remains to be seen how strictly these provisions will be interpreted. But, given that the Settlement Scheme is free, in contrast to the other costly routes, and given that the rewards are also considerably greater than other routes in terms of the status you get, many will think it a risk worth taking.
If you think you might want assistance making a late application to the EU Settlement Scheme, please do get in contact with us.
