There have been recently announced changes to the Immigration Rules relating to the EU Settlement Scheme and specifically in relation to late applications and the right to administrative review.
Late Applications for EEA nationals in the UK
EEA nationals in the UK prior to 31 December 2020 had to apply to the EU Settlement Scheme to continue their legal residence. The deadline for most people to make an application to the EU Settlement Scheme was 30 June 2021. If an application was made after this date, it was considered to be a late application.
Generally, the Home Office took a very lenient approach when assessing the reasons for a late application and granted the vast majority of applications. At this time, the provided reasons for delay for the application were evaluated under the eligibility requirement which meant that an applicant would have a right of appeal or could apply for an administrative review if the application was refused.
The Home Office EU Settlement Scheme caseworker guidance has been updated and makes the Home Office’s approach to late applications far more restrictive. Since 9 August 2023, the requirement for applications to be made by the required date, unless there were reasonable grounds for delay, is now a so called validity requirement. If the Home Office do not consider that the applicant has provided reasonable grounds for their delayed application, their application will be considered not to be valid and the application will be rejected rather than refused meaning there is no way of challenging the decision. Furthermore, the applicant will not receive a Certificate of Application which is the document which allows them to show they are legally in the United Kingdom and entitled to work.
Applicants must therefore ensure that they are preparing well-reasoned and verifiably evidenced applications in line with this new guidance to ensure that they make an application that is deemed valid.
For applications made on or after 9 August 2023, guidance suggests that:
- if no information is given as to why there has been a delay, or the information that is given does not constitute reasonable grounds in line with the guidance, it can be immediately rejected.
- if information is given which does seem to constitute reasonable grounds, but no or insufficient evidence is provided, a caseworker should write to the applicant and give them 14 days to provide that evidence.
- if a caseworker has doubts about the authenticity of evidence, they can reject the application immediately.
The applicant must prove using objectively verifiable evidence that there are reasonable grounds for their application being submitted late. The updated guidance gives some examples of reasonable grounds, but they are extremely limited and it is clear that the Home Office will be taking a restrictive approach as to what it deems reasonable.
Challenging a decision
The Home Office has also announced changes to the Immigration Rules which will remove the right of administrative review for refused EU Settlement Scheme applications where decisions were made on or after 5 October 2023. This means that even if an applicant made an application before 5 October 2023, if the caseworker decides to refuse an application on or after 5 October 2023, the applicant will not have the right of administrative review. However, there will still be a right of appeal and it is important if an application is refused that an applicant who wants to challenge the decision moves swiftly to lodge an appeal before the deadline.
How can we help?
Individuals can still make applications to the EU Settlement Scheme. If you would like to discuss whether you are eligible to apply or if you need assistance with making an application to the EU Settlement Scheme, please do not hesitate to contact us at email@example.com or on 020 7401 6887.