What is EUSS?
EUSS is the abbreviation, which means European Union Settlement Scheme. It was introduced as part of Brexit negotiations and it allows for the EU (EEA/Swiss) nationals who are legally resident in the UK to remain in the UK.
The EU nationals were required to obtain indefinite leave to remain. Under the scheme it is referred to the settled status. The pre-settled status would mean the limited leave to remain.
From the 1st January 2021 it is no longer sufficient for the EU nationals to hold permanent residence. This status had to be exchanged to the settled status under EUSS.
This is particularly evident if you do attempt to apply for British citizenship. Only the applicants who have acquired the settled status under EUSS are eligible to apply.
When was the deadline to apply for EUSS?
The scheme was opened in early 2019. The Home Office went through the process to prepare its system so that more than 5 Million of eligible EU nationals could apply quickly and without the hassle.
The positive answer was supposed to be available in an instant if your circumstances are straightforward and your records are easily accessible and verifiable.
The deadline requirement was two-fold.
You are required to have entered the UK on or before the 31st December 2020.
For someone who may have left it for the last minute. This requirement may have been a tall order to meet as the border got shut-down during the final weeks of December 2020.
International travel continued to be affected throughout 2020. Some airlines ceased their business and operations.
The final deadline to submit your application to register for EUSS was 30 June 2021. The deadline was well known several years in advance and efforts were made to publicise the requirement as much as possible.
EU (EEA/Swiss) nationals arriving from the 1st January 2021 to the UK and who have not secured their settled or pre-settled status are legally required to hold a specific visa, which allows them to work in the UK.
What do you do if you are eligible to apply but missed the deadline? What are the most recent changes?
The Initial Rules
If you missed the mandatory deadline of 30 June 2021, you may still be able to apply late if you continue to be eligible.
Initially, Home Office recognised certain circumstances and allowed for the application to be submitted after the deadline on several grounds. Home Office’s policy was hailed for being inclusive and good policy.
However, the policy permitted substantial abuse and needed to be reconsidered.
How the Rules Were Abused
From the 1st January 2021, all arrivals from the EU were expected either to hold an already approved pre-settled or settled status or hold their appropriate visa, which represented their new UK immigration status.
For instance, if they were coming in as a worker they were expected to hold the necessary visa and be sponsored by their UK based employer.
A lot of ineligible applicants under the EUSS submitted their ‘late’ applications under the late applications rules.
These applicants were not eligible to apply as they were new arrivals and have not lived in the UK before.
Still by following this process they were able to secure their Certificate of Application, which proved their right to work, rent and use the NHS while their application was being assessed by the Home Office.
The Home Office moved to shut down this abuse.
How the Home Office Responded to the Abuse
The Home Office moved to issue a stricter guidance to its caseworkers and implement a stricter approach when considering late applications.
The approach consists of two phases. In the first phase, the late application is assessed whether the late application is to be accepted. If the answer is a “yes”, then the application is considered further to see whether it meets eligibility and suitability criteria.
If the answer is “no” to the first stage question: whether the late application is to be accepted, then the application is rejected without the right for administrative review or appeal.
What are the Reasonable Grounds for Late Applications?
The justification for late application is interpreted more restrictive than previously. You may find a general list of reasonable grounds accepted. You may find the full caseworker guidance as published on 16 January 2024.
The Home Office caseworker is expected to apply the following reasoning when it is accepted that the justification for the late application is reasonable.
Firstly, to ask why the person missed the deadline? Secondly, to look whether the applicant who missed the deadline has the justification for the delay in making the application.
For instance, a person may have been hospitalised following their accident in June 2021. They might have been hospitalised until January 2022, but did not make their application until September 2023.
A strong corroborative evidence is required to justify this significant delay and it may be difficult to prove that the delay was reasonable or justifiable as a significant amount of time between the events has elapsed.
The caseworker guidance is now reworded more restrictively. For instance, the applicant who missed the deadline due to medical reasons must present evidence of serious health needs that lasted since 30 June 2021.
The new guidance has deleted some of the previously permissible grounds and now has a list of “Circumstances which will not generally constitute reasonable grounds for delay in making an application”.
What is the underlying argument for the stricter approach? The underlying argument is that the new guidance implements the very letter of the Withdrawal Agreement.
What does the Withdrawal Agreement Say?
Article 18 (1) (d) of the Withdrawal Agreement states a two stage approach.
Firstly to assess whether there are reasonable grounds to accept the late application.
Secondly, if there are reasonable grounds to assess the suitability and eligibility criteria.
The full wording of Article 18 (1) (d) is as follows:
where the deadline for submitting the application referred to in point (b) is not respected by the persons concerned, the competent authorities shall assess all the circumstances and reasons for not respecting the deadline and shall allow those persons to submit an application within a reasonable further period of time if there are reasonable grounds for the failure to respect the deadline;
Article 18 (1) (b) states:
the deadline for submitting the application shall not be less than 6 months from the end of the transition period, for persons residing in the host State before the end of the transition period.
For persons who have the right to commence residence after the end of the transition period in the host State in accordance with this Title, the deadline for submitting the application shall be 3 months after their arrival or the expiry of the deadline referred to in the first subparagraph, whichever is later.
A certificate of application for the residence status shall be issued immediately;
Therefore, it is currently accepted that the Home Office only implements Article 18 (1) (d) of the Withdrawal Agreement as originally envisaged.
If you are eligible to acquire your EUSS pre-settlement or settled status, the best course of action is to apply without any further delay.
You may also be tempted to apply for a different visa. However, applying for the correct EUSS status should be your first step.
It is also possible that your personal circumstances and your UK immigration history is not as straightforward. Therefore, you need to reach out and speak to an expert for assistance.
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Saule Voluckyte, M.A.E.S, LL.B, FAIA
I have been working exclusively with UHNWI in Mayfair, London since January 2008. I built specialist knowledge and expertise required to serve ultra high net worth individuals investing, operating and relocating to the UK or Switzerland.
Within the industry, I am the single adviser who is able to traverse the different areas of expertise and bring a comprehensive approach across: global structuring, UK immigration, international taxation and FOREX to develop their global wealth strategy, while they build, grow and expand their wealth worldwide.
Previous experience as one of the senior advisors for the government, made me a go-to person when delicate and uncomfortable scenarios involving heads of state need to be handled with care and preserve privacy.