Missing the deadline to make an application under Appendix EU
Appendix EU of the Immigration Rules contains the provisions for applications for Pre-Settled Status and Settled Status under the EU Settlement Scheme. Appendix EU has long contained details of the deadlines for such applications to be submitted (defined under the term ‘required date’). It has also provided that an application could be made after the required date if an applicant is able to demonstrate that there are ‘reasonable grounds’ for the failure to meet that deadline. The Home Office’s guidance, published for Home Office staff on 06 April 2021, contains a non-exhaustive list of what may constitute ‘reasonable grounds’ for making a late application.
When is the deadline?
In most cases, the deadline for applications for EU nationals and their family members under the EU Settlement Scheme is anytime before 01 July 2021. However, there are some exceptions to this, which include:
- In the case of a joining family member of a relevant sponsor (where the joining family member is not a specified spouse or civil partner of a Swiss citizen) and that joining family member arrived in the UK on or after 1 April 2021: the deadline is within 3 months of the date they arrived in the UK;
- In the case of a specified spouse or civil partner of a Swiss citizen who arrived in the UK on or after 1 April 2021, the deadline is within 3 months of the date on which they arrived in the UK, and before 1 January 2026;
- In the case of a joining family member who is a child who is born or adopted in the UK on or after 1 April 2021, or who becomes subject to a relevant guardianship order, the deadline is within 3 months of the date on which they were born or adopted in the UK (or became subject in the UK to such an order).
Reasonable grounds for making a late application will be considered to exist when a person has limited leave to enter or remain under another part, or outside of, the Immigration Rules, which has not lapsed or been cancelled, curtailed or invalidated. For this to apply, the date of the expiry of that leave must be on or after 01 July 2021. The deadline will then be the expiry of their leave. However, an applicant may rely on the other grounds listed below if they do not make an application prior to the expiry of their leave. It is important to note that Appendix EU confirms that Paragraph 39E does not apply to applications under the EU Settlement Scheme.
Exemption from immigration control
Where a person ceases to be exempt from immigration control on or after 01 July 2021, the deadline is 90 days beginning from the date on which they ceased to be exempt. An applicant can rely on other grounds, if they apply, if they do not make an application prior to this date.
Other circumstances considered reasonable grounds for late applications
The UK was required by Article 18 of the Withdrawal Agreement to give a person eligible for status under the EU Settlement Scheme the opportunity to make a late application to the scheme where there are reasonable grounds for their failure to meet the relevant deadline. The Home Office has stated that they will be required to submit a valid application with information setting out the grounds for their failure to meet the deadline. The Home Office’s guidance mandates that a decision maker must take a “flexible and pragmatic” approach to considering whether there are reasonable grounds for someone’s failure to make an application, in light of all the circumstances.
The examples given of reasonable grounds are as follows:
- Children (including children in care and care leavers): where a parent, guardian or Local Authority has failed by the relevant deadline to apply to the Scheme on behalf of a child under 18, that will normally constitute reasonable grounds for a child — including if they are now an adult — to make an application to the scheme. The guidance states that there is no need to consider the reason that an application was not made;
- Physical or mental capacity and/or care or support needs: where a person lacks the physical or mental capacity to apply to the EU Settlement Scheme (or did so in the months prior to the deadline applicable to them), that will normally constitute reasonable grounds for a late application. Where a person has care or support needs, this will also normally constitute reasonable grounds. Evidence of their capacity and/or care or support needs would need to be provided;
- Serious medical condition or significant medical treatment: Where a person has a serious medical condition or was undergoing significant medical treatment in the months before or around the time of the deadline, this will usually constitute reasonable grounds. Evidence of the condition would need to be provided;
- Victim of modern slavery: Where a person was prevented from applying to the Scheme before the deadline because they may be victim of modern slavery, that will normally constitute reasonable grounds;
- Abusive or controlling relationship or situation: this may constitute reasonable grounds for missing the deadline. The guidance acknowledges that the nature of that abusive or controlling relationship or situation may take one of several forms and the Home Office must be flexible and pragmatic;
- Other compelling practical or compassionate reasons: The examples given under this category are that a person may have been unaware of the relevant deadline because they had no internet access, limited English language skills or had been living overseas. A number of other circumstances, such as restrictions during the COVID-19 pandemic or a lack of permanent accommodation, or being in prison, are also listed. A lack of awareness of the need to apply, for example from someone who has been in the UK for a long period of time, or held a document issued under the EEA Regulations are included as possible reasonable grounds.
The guidance states that from 01 July 2021, where a person without status under the EU Settlement Scheme is encountered by Immigration enforcement, the officer will consider whether that person may have been eligible to make an application under the EU Settlement Scheme. If it appears to the officer that this may be the case, they will provide a written notice providing the opportunity to make a valid application under Appendix EU. The decision maker will then subsequently consider whether there are reasonable grounds for the late application being made.
The list of circumstances that may be considered to constitute reasonable grounds is broad, and as outlined above, is non-exhaustive. This, and the requirement that the decision maker takes a flexible approach, suggests that the Home Office will work with applicants in ensuring that those who do have reasonable grounds for missing the deadline will not be disadvantaged. However, there is a suggestion that this approach may be time-limited. The guidance states that:
For the time being, following 30 June 2021, you will give applicants the benefit of any doubt in considering whether, in light of information provided with the application, there are reasonable grounds for their failure to meet the deadline applicable to them under the EU Settlement Scheme, unless this would not be reasonable in light of the particular circumstances of the case. Any change in approach will be reflected in a revision of this guidance.
The guidance has in its current form been drafted generously to attempt to encompass a broad range of circumstances, potentially including lack of knowledge of the deadline, in the definition of ‘reasonable grounds’. However, this paragraph of the guidance suggests the possibility that the current approach is time limited and may well be subject to change in the future. All applicants should seek advice at the earliest opportunity if they become aware that they may have missed or be unable to meet the relevant deadline.