4. Restore reasonableness to the ‘reasonable grounds’ policy regarding late applications to the EUSS
What?
In August 2023, the Home Office changed the EU Settlement Scheme (EUSS) to make it much harder for people who missed the June 2021 deadline to submit late applications. However, the changes went far too far, preventing genuine late applicants from being granted the rights to stay in the UK that the Withdrawal Agreement had envisioned. Despite some limited Home Office row back in early January 2024, it is still the case that many applicants are prevented from acquiring status, due to a very unreasonable interpretation of the ‘reasonable grounds’ policy on late applications.
This proposal would make some simple changes to the EUSS guidance that will stop August 2023 policy changes from affecting the very people the Withdrawal Agreement was supposed to protect.
Why?
The tightening of the policy and its (possibly unintended) consequences affects mostly people who have been living in the UK for many years, and who simply did not realise that they were supposed to apply to the EUSS. This includes, just as a non-exhaustive example list:
- EU citizens who had Home Office cards from years or even decades ago;
- Non-EU family members (again, with Home Office documentation) who were aware of the EUSS but thought it applied just to EU citizens;
- People who were genuinely unaware because they either did not follow or understand the implications of Brexit;
- People who were born outside the EU, moved to the EU and naturalised as EU citizens but don’t necessarily identify as such. Many did not understand that their legal rights to live in the UK were contingent on their EU citizenship.
It is only when people encounter a ‘trigger event’ that they realise they lack the legal right to remain in the UK unless they gain EUSS status. Just as we saw with the Windrush scandal, these trigger events can happen many years after changes in policy and legislation. There are still an unknown (but suspected large) number of people who have not changed jobs or home since Brexit, who have not had to update a driving licence, who have not travelled, who have not required hospital treatment or welfare benefits. This is borne out by the more than 215,000 successful grants of status to late applicants over the last three years, including over 10,000 in the last published quarter.
Not to protect these people through some simple policy changes risks leaving people undocumented and subject to the full force of the Hostile Environment.
Why not? Reasoning behind UK Govt position and why we disagree
The Home Office’s stated reason for doing this was to ensure that those who are clearly not eligible for EUSS status do not receive a Certificate of Application (CoA) that enables them to work in the UK while their applications are considered.
It is clear that this change of policy is catching those it wasn’t designed to catch, and therefore there should be no reason whatsoever not to implement the proposed changes and bring the EUSS in line with the rest of the Immigration Rules. People who have clearly been part of UK society for many years cannot possibly be considered to be making ‘spurious’ applications to gain a temporary CoA.
Cost?
This can only be a cost-saving measure for all. For the Home Office there would be savings in EUSS caseworkers, and dealing with judicial reviews proceedings. For charities and support organisations, it would relieve some of the pressures they are facing, as challenging rejected EUSS applications is taking up an unnecessarily large part of their workload. The grant funding provided by the Home Office to the four organisations operating at national level is for IAA level 1 work only, meaning that these organisations often cannot assist with these challenges.
How?
Primary legislationSecondary legislation- Immigration Rules
- Guidance change
The detail
Therefore, while it is open to the Home Office to reject as invalid an application made by someone who is clearly ineligible to the Scheme, the EUSS must be constructed to ensure that anyone who would otherwise be eligible is able to submit a late application - even if their only reason for missing the deadline is “I did not know”.
Therefore we propose the following changes to the EU Settlement Scheme Caseworker guidance:
- Anyone with legacy Home Office documentation such as EEA residence cards or historic proof of ILR should have a reasonable ground without more to make a valid late application to the EU Settlement Scheme.
- Remove the negative weight of repeat applications; many people who have made repeat applications will have done so without legal advice or with incorrect legal advice, or will have struggled to evidence their residence evidence. The Withdrawal Agreement (Art. 18(1)(o) imposes a duty on the authorities to help people prove their eligibility, and frequently this has not happened.
We also propose a change to the EU10(1) of the Appendix EU in the Immigration Rules, which - consistent with other UK immigration routes - introduces discretion to treat an application as valid, by simply changing the word ‘will’ to ‘may’:
EU10. (1) An application made under this Appendix may be rejected as invalid where it does not meet the requirements in paragraph EU9.
