All EU, EEA and Swiss nationals who were living in the UK before 31 December 2020 are eligible to apply to remain in the UK under the EU Settlement Scheme (EUSS). You must apply to the EUSS before the deadline of 30 June 2021 if you want to continue living and working in the UK after that date. Thankfully, the Home Office has confirmed that there will be some allowance for late applications in certain circumstances (see below for more detail) but we recommend applying before the deadline, unless impossible, to avoid unnecessary uncertainty and delays in confirming status.
The EUSS also applies to certain family members and dependants even if they are not themselves from the EU. These applications can be more complicated so, again, we recommend submitting them as soon as possible before 30 June.
For those EU, EEA and Swiss nationals (and non-EU family members/dependants) who have been in the UK for more than 5 years, you are entitled to apply for settled status, which is the equivalent of indefinite leave to remain.
For those who have been in the UK for less than 5 years, you can apply for pre-settled status which, if successful, will result in you being granted a visa to remain in the UK for a further 5 years. Before the expiry of that 5-year visa, you will be eligible to apply for settled status.
It is important to note that you must still apply to the EUSS even if you already have an EU permanent or other residence card under the pre 31 December 2020 EEA Regulations as these cards will cease to be valid from 1 July 2021.
Late applications – reasonable grounds
The Home Office caseworker guidance confirms that late applications may be accepted where there are “reasonable grounds” for applying late. Applicants who miss the deadline will also be given the benefit of the doubt, at least “for the time being”, when the Home Office assesses their reasons for applying late. The guidance provides a non-exhaustive list of examples of grounds for a late application that will be considered as “reasonable”, which include:
- You had a serious medical condition (including COVID) or significant medical treatment in the months leading up to 30 June 2021;
- You already hold a biometric residence card under the pre 31 December 2020 EEA Regulations as mentioned above and did not realise you had to apply to the EUSS;
- You already have an alternative visa and did not realise that you were also eligible to apply to the EUSS;
- You are a child whose parent or guardian did not realise that they had to apply on your behalf;
- You are vulnerable e.g. lacking physical or mental capacity to make the application, are in an abusive or controlling relationship or are a victim of trafficking;
- You had no internet access, limited English language or computer skills or had been living overseas.
These are just some of the examples given. The guidance states that the Home Office should be flexible and pragmatic when it comes to late applications. There are, however, never any guarantees when dealing with the Home Office, so we still recommend submitting an application before 30 June if possible, to ensure that you do not lose your right to remain in the UK.
Advice for Employers with EU national employees
EU citizens who miss the deadline for applying to the EUSS and do not have reasonable grounds for doing so will lose their right to live and work in the UK and this will cause obvious problems for you as their employer. The employee will then need to apply for a different type of visa such as a skilled worker visa and you as their employer will need a sponsor licence if you do not have one already. There is also a minimum salary requirement and skill level for skilled worker visas, meaning that not all EU citizens would automatically be eligible to apply.
Employers should therefore continue to encourage their EU employees to apply to the EUSS as a matter of urgency, and in any case as soon as possible ahead of the deadline.
About the Author
Alice Boyle is a solicitor with extensive experience in all areas of immigration law. She can assist both corporate and individual clients with any immigration, nationality or asylum matter and possesses a sound understanding of business related immigration. Alice has substantial experience of challenging UK Home Office decisions, regularly representing clients in appeals at both the First-Tier and Upper Tribunal and also by way of Judicial Review applications in both the Upper Tribunal and UK High Court.
Prospect Law is a multi-disciplinary practice with specialist expertise in the energy, infrastructure and natural resources sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and other technical experts.
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This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.
For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on [email protected].