Authored By: Rashid Mehmood
university of central lancashire, UK
Introduction:
Following the United Kingdom’s departure from the European Union, the UK government introduced the EU Settlement Scheme (EUSS) to safeguard the rights of EU citizens and their nonEU family members residing in the UK before the end of the transition period. The scheme, established under domestic UK law and aligned with the provisions of the Withdrawal Agreement, aimed to offer continuity of residence rights post-Brexit. However, while the majority of eligible applicants submitted their requests before the deadline of 30 June 2021, a considerable number failed to apply on time due to various personal and systemic reasons. This article examines the legal challenges encountered by those making late applications to the EUSS, particularly EU citizens and their family members, focusing on issues of procedural fairness, evidentiary burdens, and human rights considerations.
Legal Framework of the EU Settlement Scheme
The EUSS is underpinned by the Immigration Rules Appendix EU and reflects commitments made in Part 2 of the UK-EU Withdrawal Agreement, which protects the rights of EU citizens and their family members who were lawfully resident in the UK before 31 December 2020. The scheme allows qualifying individuals to obtain either settled status (indefinite leave to remain) or pre-settled status (limited leave to remain).
Applicants were required to submit their applications by 30 June 2021. Those applying after this date must demonstrate reasonable grounds for failing to apply on time, as set out in Home Office guidance.
The Home Office’s policy document titled EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members – version 16.0 (published in July 2023) outlines the accepted justifications for late submissions and guides decision-makers on the appropriate application of discretion in such cases.
Grounds for Late Applications
The Home Office recognises a range of scenarios that could constitute “reasonable grounds” for submitting a late application. These include:
- Serious medical conditions or significant physical or mental impairment that affected the applicant’s ability to apply.
- Lack of capacity to understand the application process, particularly in the case of children or individuals with learning disabilities.
- Domestic abuse victims, where control or coercion by a partner may have prevented the individual from applying.
- Vulnerable adults, such as those who are homeless or institutionalised.
- Lack of awareness in specific cases, such as long-term residents or isolated communities who were unaware of the requirement to apply.
Although the guidance appears inclusive, in practice, applicants bear the burden of proving these circumstances with sufficient documentary evidence, which can be challenging.
Common Issues Faced by Late Applicants
One of the most significant hurdles faced by late applicants is evidentiary difficulty. Proving circumstances retrospectively—particularly when involving lack of awareness or coercion—can be complicated, especially for applicants with limited access to legal assistance.
Another critical concern is the interim status of late applicants. Until their status is confirmed, they are considered unlawfully resident, making them ineligible for employment, housing assistance, healthcare (in some cases), and welfare benefits. This “hostile environment” creates a vicious cycle, leaving applicants vulnerable while waiting for a decision.
Furthermore, language barriers and digital exclusion have significantly affected elderly applicants and non-English speakers, many of whom were unaware of the digital-only nature of the application process or how to seek assistance.
Case Law and Policy Development
Recent case law has highlighted inconsistencies in Home Office decision-making. In R (on the application of Independent Monitoring Authority) v Secretary of State for the Home Department [2023] EWHC 3274 (Admin), the High Court ruled that the UK Government’s approach of requiring pre-settled status holders to reapply or face loss of residence rights breached the Withdrawal Agreement. The judgment reinforced the need to ensure procedural fairness and legal certainty for beneficiaries of the EUSS.
Similarly, cases heard by the First-tier Tribunal (Immigration and Asylum Chamber) have scrutinised the Home Office’s refusal to accept valid reasons for delay, particularly in circumstances involving children or victims of abuse. These rulings underscore the necessity of applying a human rights-centred and proportionate approach.
Impact on Family Members
Family members of EU citizens face additional complexity when applying late. Under the Withdrawal Agreement, the right of residence extends to spouses, civil partners, dependent children, and dependent parents. However, the “dependency” requirement must be met and evidenced, often through detailed documentation.
In many cases, family members living abroad at the time of the deadline missed the application date due to travel restrictions or delays in processing passports and relationship evidence. They now face challenges in demonstrating a “durable relationship” or continuous dependency. Inadequate guidance on these requirements has led to a surge in refusals.
Furthermore, the status of family members is often derivative of the principal EU citizen’s application. If the EU citizen’s status is refused due to a late application, it can have cascading effects on the family unit.
Human Rights and Proportionality Considerations
The principle of proportionality, derived from EU law, continues to apply to EUSS decisions under Article 18(1)(r) of the Withdrawal Agreement. The Home Office is obligated to assess whether refusals based on late applications are proportionate in light of the applicant’s circumstances.
Moreover, Article 8 of the European Convention on Human Rights (right to private and family life) plays a crucial role in appeals. The UK courts have repeatedly emphasised the need to balance immigration control against the individual’s right to maintain family life and community ties, particularly in cases involving children or long-term residents.
There is growing concern among legal professionals that the Home Office often applies policy rigidly, without giving due weight to individual rights or proportionality principles, leading to legal uncertainty and appeals.
Recommendations and Conclusion
To ensure fairness and compliance with the UK’s international obligations, the following measures are recommended:
- Improved clarity in Home Office guidance to ensure decision-makers adopt a flexible and proportionate approach when assessing reasonable grounds.
- Increased funding for legal aid and advisory services to support late applicants, particularly vulnerable individuals.
- Outreach programmes targeting hard-to-reach communities, ensuring widespread awareness of eligibility and deadlines.
- Expansion of evidentiary allowances, accepting sworn statements or declarations where documentary proof is difficult to obtain.
In conclusion, while the EU Settlement Scheme was designed to offer reassurance and continuity to EU citizens and their families post-Brexit, the current approach to late applications risks undermining these protections. A more compassionate and consistent implementation of the policy, guided by principles of proportionality and human rights, is necessary to uphold the UK’s commitments under the Withdrawal Agreement.
Reference(S)
- Withdrawal Agreement between the European Union and the United Kingdom [2020] OJ L29/7.
- Immigration Rules Appendix EU.
- Home Office, EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members (Version 16.0, July 2023).
- R (Independent Monitoring Authority) v Secretary of State for the Home Department [2023] EWHC 3274 (Admin).
- European Convention on Human Rights, Article 8.
- First-tier Tribunal (Immigration and Asylum Chamber) case law, available at:[tribunalsdecisions.service.gov.uk]
