Closure Of The EU Settlement Scheme – Not Quite The End . . . Yet

By James Perrott on July 1, 2021

Posted in Brexit, Coronavirus, COVID-19, European Union, Immigration, Mayer Brown Global Mobility, Right To Work, UK, Visas

The official 30 June deadline to submit an initial application under the EU Settlement Scheme (“EUSS”) has now passed. There were a flurry of last minute applications and reports of people being unable to submit their applications due to technical difficulties caused by the number of people logging onto the on-line form. There is a significant backlog of applications and some applications have yet to arrive with the Home Office as they had to be submitted by post. Fortunately, whilst an application is pending, an applicant continues to have the right to live and work in the UK.

Whilst the deadline for applications has come and gone, there may still be hope for some who may not have managed to submit an application in time.

Applications are still being accepted from any of the following:

the family member of an EEA / Swiss national who was living here by 31 December 2020, where the family member joined the EEA / Swiss national in the UK on or after 1 April 2021 – the application must be submitted within 90 days of the family member arriving in the UK;
a child, who was born or adopted in the UK on or after 1 April 2021 – the application must be submitted within 90 days of the child’s birth or adoption;
the family member of an eligible Northern Irish national who could not move back to the UK by 31 December 2020 without that family member – the family member must be from outside the EEA / Switzerland and they have to apply within 90 days of entering the UK;
an individual who is exempt from immigration control or who stopped being exempt from immigration control after 30 June 2021 – again, they must apply within 90 days of the date they stop being exempt from immigration control;
an individual in the UK with time limited immigration permission (for example, they hold a UK work or study visa) which expires after 30 June 2021 – the application must be submitted before their immigration permission expires;
a family member of a British citizen whom the applicant lived with in the EEA / Switzerland before 30 December 2020, and returned to the UK with the British citizen – the application must be submitted by 29 March 2022.

A late application may still be accepted in other situations, but applicants must show “reasonable grounds” for why they did not apply by 30 June 2021. The current Home Office guidance to caseworkers advises them to “take a flexible and pragmatic approach” when considering whether missing the deadline was reasonable. The following are some (but not all) of the reasons the Home Office may accept as “reasonable grounds” for a late application:

child’s parent or guardian did not apply on their behalf whilst they were still a child;
applicant has or had a medical condition that prevented them from applying;
applicant had been the victim of modern slavery;
applicant had been in an abusive or controlling relationship;
lack of internet access, or access to relevant documents;
difficulty accessing support to apply because of COVID-19 restrictions.

Information for Employers

Employers can no longer rely solely on an EEA / Swiss national’s passport or national ID card as evidence of their right to work in the UK. With the exception of Irish nationals, employers will now have to carry out online right to work checks for all prospective EEA / Swiss national employees, or ask them to provide one of the documents on the Home Office’s new Right to Work Checklist – Right to work checklist (publishing.service.gov.uk). Although, these new Right to Work rules apply from 1 July 2021, it is important to note that employers do not have to make retrospective checks on existing EEA / Swiss employees’ right to work in the UK.

However, if an employer does identify any EEA / Swiss employees who commenced employment on or before 30 June 2021 who qualify for, but have not made, an application to the EUSS before 30 June deadline, they should advise them to submit an application immediately. Provided the application is submitted within 28 days of the issue being identified, the Home Office has introduced a concession, until 31 December 2021, which means that the employer may continue to employ the EEA / Swiss national until a decision is made on the application.

Conclusion

Whilst the official deadline for EUSS applications has now passed, the Home Office will still accept applications in certain circumstances. This will come as a relief for those who have been unable to submit an in-time application. However, whilst current Home Office guidance indicates it may accept late applications for an indefinite period, it is likely that this guidance will become more restrictive as time passes.

For anyone, therefore, who has missed the deadline, they should apply as soon as possible. It is important to note that there is no guarantee that the Home Office will accept late applications and individuals filing such applications should submit evidence which supports the reasons why the application was not made in time. As ever, it is highly advisable that any individuals who find themselves in this situation seek legal advice before submitting the application.