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05 May 2021
Main EUSS deadline
People with an outstanding British citizenship process
EEA family permit holders
EUSS family permit holders
People with immigration permission under Immigration Rules
People who stop being exempt from immigration control
Children born, adopted or otherwise in United Kingdom on or after 1 April 2021
Family members of citizens who have exercised free movement rights in European Economic Area
People with a UK residence card issued under EEA Regulations
People who have already been granted pre-settled status under EUSS
What happens if the relevant deadline is missed?
The main EU Settlement Scheme (EUSS) deadline is 30 June 2021; however, there are other deadlines and considerations of which applicants and their employers may be unaware. Although it is possible to make a late application, this will be allowed only where the individual can demonstrate reasonable grounds for missing the deadline.
This article highlights a selection of issues that relate to the main deadline or will start to have practical implications after 30 June 2021.
This deadline for EUSS applications applies to EEA nationals and eligible family members with residence rights under EU law who were living in the United Kingdom by 11:00pm GMT on 31 December 2020 and who have not broken their continuous residence period when they make their application.
This deadline applies to applications for both pre-settled and settled status, irrespective of whether the person is inside or outside the United Kingdom when they make their application. Those who previously acquired a right of permanent residence in the United Kingdom can (with limited exceptions) apply under the scheme if, when they apply, they have not been absent from the United Kingdom for more than five continuous years. It is not necessary to re-enter the United Kingdom to make the application.
Those who have been absent from the United Kingdom during the COVID-19 pandemic should consider whether they are still eligible to apply under the EUSS and ensure that they apply on time, even if they currently remain outside the United Kingdom. The Home Office has published specific COVID-19 absence policies in relation to the EUSS, which may benefit some who have been outside the United Kingdom for up to 12 months.
A person who has broken the continuity of their residence should check whether they can apply as a joining family member of a person who has been granted pre-settled or settled status under the scheme.
A person who has already applied for British citizenship using their permanent residence document or card must ensure that they make an EUSS application by 30 June 2021 if British citizenship has not been conferred by this date. This is because making an application for British citizenship does not extend a person's immigration permission, so an immigration application will be required to maintain lawful immigration status while the citizenship process is outstanding.
Where a person must attend a citizenship ceremony as part of the process, citizenship is not conferred until the ceremony has taken place.
The 30 June 2021 deadline for making an application under the EUSS also applies to those who hold an EEA family permit, even if, on the face of the permit, it is due to expire on a later date. This may cause confusion for applicants and some people will likely miss the deadline.
EUSS family permit holders must apply under the EUSS within three months of their arrival in the United Kingdom or before their EUSS family permit expires, whichever is earlier.
EUSS family permits are issued for either six months or for four months from the intended date of arrival for those who are intending to arrive more than three months after the date of decision on the permit.
The same potential confusion issue applies as for EEA family permit holders.
There is also an additional deadline for certain joining spouses and civil partners of Swiss citizens. Where the spouse or civil partnership relationship was formed between 11:00pm GMT on 31 December 2020 and 31 December 2025, the individual must ensure that they make their EUSS application while their EUSS family permit is valid, within three months of their arrival, and by 31 December 2025.
There are EUSS applicants to whom the main 30 June 2021 deadline would otherwise apply, but who hold limited immigration permission under the Immigration Rules (other than under the EUSS) or outside the Immigration Rules. Where their immigration permission expires on or after 1 July 2021, they must make their EUSS application before expiry.
Although an application made by such a person after 30 June 2021 will technically be considered to be late, the Immigration Rules provide that as long as the application is submitted before the expiry of the immigration permission, this will be deemed to be reasonable grounds for missing the deadline. A person who applies before the expiry of their immigration permission will be covered by a statutory extension of their immigration permission and will still be in the United Kingdom lawfully, including having the same immigration conditions, until the EUSS application process (including any related administrative review or appeal) is complete.
An EUSS applicant who stops being exempt from immigration control on or after 1 July 2021 will be deemed to have reasonable grounds for missing the 30 June 2021 deadline, provided that they apply within 90 days of their exemption stopping. The 90-day period starts on the day on which the person stops being exempt.
Children who are born, adopted or otherwise come within the scope of the definition of 'child' for the purposes of the EUSS (which includes certain children born through surrogacy or who are the subject of certain guardianship arrangements) must make their EUSS application within three months of their birth or other relevant event that brings them within the scope of the 'child' definition.
It will be important to check whether such children are British by birth, or eligible to apply for British citizenship, either immediately or once their parent receives settled status.
Certain family members of British citizens who have exercised free movement rights in the European Economic Area by 11:00pm GMT on 31 December 2020 and have not already returned must enter the United Kingdom, with or after their British citizen family member, and make their EUSS application by 11:00pm GMT on 29 March 2022. Any application must also be made before the expiry of their EUSS family permit.
The eligibility requirements for these family members are complex, so specific advice may be required.
UK residence cards issued under the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations) will no longer be valid after 30 June 2021. This may cause practical issues for visa national family members of EEA nationals, because even if they have been granted permission under the EUSS, they will not have valid physical evidence of their UK immigration permission to show to transport carriers before boarding. Other people with permission under the EUSS may also prefer to have a valid physical document – for example, to show a right of return to the United Kingdom to foreign governments when making visa applications.
It is possible to apply for an EUSS biometric residence card (BRC) to be issued to address these problems. Doing this is advisable so that a valid card is in place ahead of any travel needs arising.
The Home Office recently confirmed in an email to stakeholders that due to a surge of applications to issue or replace BRCs, since 23 April 2021 some applicants are being invited to use an identity verification app as part of the application process rather than attending a UK Visa and Citizenship Application Services service point to provide their biometrics. This may speed up the process for some applicants.
People who have already been granted pre-settled status under the EUSS must make a further application under the EUSS before the expiry of their existing pre-settled status. However, in many cases, applicants may qualify for settled status well ahead of this expiry and may apply for this as soon as they become eligible.
It is possible to make a late application under the EUSS. Where this happens, the applicant must show reasonable grounds for failing to meet the relevant deadline as part of the application.
The initial guidance issued by the Home Office states that for the time being, following 30 June 2021 applicants will be given the benefit of any doubt on this issue, unless this would not be reasonable in the particular circumstances of the case. The Home Office will also engage with applicants to give them a reasonable opportunity to put forward their grounds. However, the guidance will be revised at a later date and will likely become more restrictive as time goes on.
With the exception of those who still have a valid EUSS family permit, a person who is making a late application will be an overstayer while the application is under consideration. While in the United Kingdom as an overstayer, the person would not be allowed to work or rent private accommodation. They may also be charged for accessing the National Health Service (NHS) between the time they become an overstayer and the time they submit their EUSS application.
A baby born in the United Kingdom would not be an overstayer, but would be subject to NHS charging beyond the first three months after their birth or until they depart the United Kingdom (if earlier).
Those who are ultimately unsuccessful in their EUSS application will likely need to apply under the Immigration Rules. Although this is an area that may see reform in the future with regard to failed EUSS applicants, the present position is that for those applying in some routes, including work routes, this could involve a re-entry ban of at least 12 months.
For further information on this topic please contact Andrew Osborne or Kathryn Denyer at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org or email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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