April 14, 2021

Late applications to the EU Settlement Scheme

From 1 July 2021, EU, EEA and Swiss citizens living in the UK without having applied for pre-settled or settled status under the EU Settlement Scheme will be here unlawfully. The Home Secretary confirmed a few months ago that people can apply after that deadline, but they must have “reasonable grounds to apply late”. Clarity on what grounds might be considered reasonable was lacking until 1 April 2021, when the Home Office released guidance on how it will deal with late applications: pages 26 to page 44 of the main caseworker guidance.

Since the Home Office also requires those with pre-settled status to make a further application in order to upgrade to settled status, this guidance also applies to those who fail to upgrade before their pre-settled status expires. It also applies to family members joining an EU citizen sponsor via the family permit route, and to a few other scenarios.

Overall, the guidance reflects the EU-UK Withdrawal Agreement and meets the majority of asks from the support sector — which raises the question of why it took so long to be produced.

Even though the guidance is helpful, there are a few aspects of it that will require further exploration and monitoring.

Non-exhaustive list of good reasons
The list of reasonable grounds for applying to the Settlement Scheme late is non-exhaustive and every case must be considered in light of its particular circumstances. Nevertheless, the guidance provides examples of situations that will “normally” be accepted as reasonable grounds for applying late.

Children (including children in care and care leavers)
Where a parent, guardian or Local Authority has failed to apply for a child, this will normally constitute a reasonable ground. The guidance stresses that the Home Office does not need to consider the reasons why the responsible adult failed to apply to the scheme.

Physical or mental capacity and/or care or support needs
Where a person lacks the physical or mental capacity to apply, or has care or support needs, that will normally constitute reasonable grounds. Flexibility will also be extended to adults with broader care or support needs, such as those living in residential care homes or receiving care and support in their own homes. The Home Office will expect evidence to support these claims, as well as evidence of legal authority for a third party to act on behalf of the person lacking capacity, if applicable.

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 applicable to them”, that will normally constitute a reasonable ground. The Home Office will expect to see evidence supporting the medical claims.

Victim of modern slavery
Where someone was prevented from applying because they are a victim of slavery, including human trafficking, that will normally constitute a reasonable ground for applying late.

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If the person has a positive reasonable or conclusive grounds decision under the National Referral Mechanism, no further evidence will be required. Otherwise, the application will need to be internally referred to the Home Office safeguarding team for advice on referral to the National Referral Mechanism. If it results in a referral, then this will constitute a reasonable ground and the Settlement Scheme application can be considered without waiting for the outcome of the referral.

Evidence of slavery or trafficking is not required. The Home Office must be aware of indicators of slavery or trafficking and be alert to identifying such victims to ensure that they are referred into the National Referral Mechanism.

Abusive or controlling relationship or situation
Where someone was prevented from applying because “they are or were a victim of domestic violence or abuse (or the family member of such a victim) or are or were otherwise in a controlling relationship or situation which prevented them from applying”, then this will normally constitute reasonable grounds. The applicant will not need to provide specific evidence of the ill-treatment; any evidence, information or other factors that the EU citizen can provide will be considered by the Home Office, which must be flexible and pragmatic.

Other compelling practical or compassionate reasons
This is a catch-all for all other possible scenarios. For example, a person may have been unaware of the requirement to apply because they had no internet access, limited computer literacy, limited English language skills, lack of permanent accommodation, other complex needs, or was released from prison or immigration detention after the deadline.

This also includes those who did not apply in time because they did not have the required evidence (e.g. they could not get a valid ID document in time and did not know they can rely on an expired document). Such circumstances can be considered as a “compelling practical or compassionate” reason. The person will need to provide supporting evidence, which can include a letter or statement from a relative, carer or care home, explaining the barriers that prevented an earlier application.

Ceasing to be exempt from immigration control
Those who are exempt from immigration control altogether (for example, diplomats) may be able to apply late after they cease to be exempt. They will have a period of 90 days from the date they cease to be exempt to apply; if they miss that 90-day window, they can apply late. They will need to have reasonable grounds for applying late.

Existing limited or indefinite leave to enter or remain
Those with limited leave can apply to the Scheme any time after their limited leave expires so long as they have reasonable grounds for applying late in line with the overall guidance. Those with indefinite leave do not need to apply at all, but there may come a point in time that they want to do so to acquire the additional rights that come attached to settled status. They can apply late to the scheme so long as they demonstrate reasonable grounds for missing the deadline, in line with the guidance.

Document or status under the EEA Regulations
There are people who have a biometric residence card or other residence document issued under the EEA Regulations and who may not realise that they can no longer rely on them beyond the deadline.

Benefit of the doubt
The guidance also suggests that there will be flexibility, at least initially after the deadline, for those who are applying late but who do not have an obvious basis for their late application. A highly skilled EU citizen in full-time employment is just as likely as any other EU citizen to miss the deadline if they did not know that the Settlement Scheme applies to them. In such a scenario the “benefit of the doubt” will be applied. The guidance explains:

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 Home Office has confirmed to us that, for an “initial period” after the deadline, in most cases late applications will be accepted where a person was unaware of the need to apply. The person will simply need to explain why they were unaware and will not be expected to demonstrate reasonable grounds or provide any supporting evidence.

There remains ambiguity on how long this “initial period” will last. The Home Office has told us that it will look at reviewing the guidance “sometime later this year”.

Immigration enforcement
The policy says that where EU citizens are encountered by an immigration officer – and if it appears that they fall within the scope of the Scheme – they should be issued with a written notice. This should give them an opportunity to make a valid application under the Settlement Scheme, normally within 28 days of the date of the notice. No immigration enforcement action for being in the UK without permission will normally be taken during this period.

While appropriate and required, immigration lawyers are well aware of the pitfalls of written notices served on individuals. These written notices can easily be ignored, misunderstood, misplaced or forgotten about in the chaos of daily life. The format, content and language of this written notice is going to be key to its success. If complex, containing unnecessary legal jargon or written in a language that the EU citizen does not understand, it will have the intended effect.

Non-EU family members
As is the case with most immigration processes, it may adversely impact non-EU family members the most, particularly when thinking about how the enforcement process above will work in practice.

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Non-EU family members often have the most complex family relationships and the most complex methods of having acquired or retaining residence rights from their EU citizen sponsor. It is also not going to be immediately obvious to immigration officers undertaking a raid that, for example, the non-EU family member they encounter is also the carer of a self-sufficient EU child. The non-EU family member may even not fully understand it themselves and, even if they do, may find it hard to explain during the stress and chaos of the raid.

The guidance on enforcement up to 1 July explains the care that must be taken during enforcement interviews to ensure those with rights are protected — but unintended outcomes still occur. On occasion, enforcement officers inadvertently miss the residence rights that some people possess. It is not unreasonable to presume that some people who will need the protection of the 28-day written notice may fail to receive them because of mistakes by enforcement officers. What happens in this situation is unanswered in this policy and is likely to be covered in subsequent updates to the enforcement guidance.

Enforcement after the 28-day window
There will inevitably be some people who fail to apply to the Settlement Scheme before the notice expires. The policy does not provide any information on what happens to such a person. Presumably, missing the window means that immigration enforcement is restarted, and the person will have less basis to claim a reasonable ground for a late application that comes after the window. We will need to await further updates to the enforcement guidance to understand this better.

Pre-settled to settled status
Although the headline Settlement Scheme deadline is 30 June 2021, the Scheme was never going to fully close on that date. The Home Office intends for it to remain open for years to come for those with pre-settled status to apply to upgrade to settled status.

As things stand, the deadline for those with pre-settled status to apply for settled status will be unique to the individual: it is the date of expiry of their pre-settled status. So late applicants can be those who fail to meet the deadline of 30 June 2021 to apply for initial status, but also those who miss their personal deadline to “upgrade” their status in the years to come. The also guidance applies to this cohort of people.

Pre-settled status holders should be reminded to submit their upgrade application:

The first grants of pre-settled status, under the initial test phase of the EU Settlement Scheme which began on 28 August 2018, will expire in Autumn 2023. This guidance will be updated before then and we will send a reminder to those granted pre-settled status to apply for settled status before their pre-settled status expires.

Any kind of reminder is helpful, although people can change email addresses and telephone numbers, so not all reminders will reach the intended recipients. It is easy to imagine settled status applications in the future hinging on evidence that the reminder did not reach the recipient in order to establish a good reason for applying late.

March 30, 2021

EU residence documents are no longer valid after 30 June 2021

Although the UK left the European Union on 31 January 2020 and the post-Brexit transition period came to an end on 31 December 2020, certain aspects of EU free movement law continue to apply into 2021 — but not for much longer. Old EU residence documents such as permanent residence cards, UK residence cards and derivative residence cards continue to be valid only until 30 June 2021, when this “grace period” comes to an end.

These documents have effectively been replaced by the newer pre-settled status and settled status, although these are not granted automatically and anyone who only has an old EU residence document should apply for a new status by 30 June.

Expiry of EU residence documents

Under EU free movement law, citizens of European Economic Area countries and their family members could apply for permanent residence documents if they had been living in the UK for at least five years, and non-EEA family members specifically could apply for UK residence cards and derivative residence cards if they were living in the UK for less than five years. These documents are evidence that someone is residing in the UK lawfully under the EEA Regulations 2016.

As EU residence documents are issued in accordance with the EEA Regulations, they will no longer be valid when free movement law truly ends on 30 June 2021. After this date, holders of these documents will essentially be living in the UK unlawfully. This is due to the Citizens’ Rights Regulations 2020 and the Immigration Act 2020 which bring EU free movement law to an end in the UK and repeal the EEA Regulations.

What if I want to stay in the UK?

Holders of EU residence documents who wish to remain in the UK should apply to the EU Settlement Scheme to regularise their stay before 30 June 2021. Those who already have a permanent residence document can essentially swap it for full settled status. Residence card and derivative residence card holders will also be able to apply for settled status if they have been living in the UK for at least five years, and for pre-settled status if they have not yet reached five years’ residence.

The deadline for applications to the EU Settlement Scheme for those living in the UK before 31 December 2020 is 30 June 2021. If you intend to remain in the UK, you should apply as soon as possible.

Switching to settled status would only be unnecessary if you have been granted British citizenship, and attended your citizenship ceremony, by 30 June. Whilst it is still possible to apply for British citizenship with your permanent residence document, the current decision-making timescales and delays arranging ceremonies due to COVID-19 mean that it is unlikely you will receive a decision before 30 June.

Merely applying for citizenship does not give you any particular residence rights under UK immigration law. If you have applied for citizenship based on a permanent residence document you must still apply for settled status before 30 June or risk being unlawfully resident while awaiting your citizenship decision.

What will happen to those who don’t apply

When the grace period finishes on 30 June 2021 there will undoubtedly be thousands of EEA nationals and non-EEA family members who have not yet applied to the EU Settlement Scheme. It remains to be seen whether the government plans to address the problem of potential widespread illegality. One solution could be to extend the validity of EU residence documents beyond 30 June to allow those affected more time to apply. But there is absolutely no guarantee of this happening and the government has insisted that the deadline is final.

So for any EEA nationals and their family members who wish to remain in the UK beyond 30 June and have not yet applied to the Settlement Scheme or for British citizenship, this is likely your final reminder – apply now or get ready to face the hostile environment.

March 27, 2021

Punishment of clandestine entrants

As proposed in new Immigration Plan, people who have entered the UK illegally to claim asylum, or who have travelled through a “safe third country” such as France, will be have fewer rights than before.

Rules allowing the Home Office to refuse even to consider an asylum claim where the person has come via a safe third country are already in place but get another airing.
We are told that “anyone who arrives into the UK illegally – where they could reasonably have claimed asylum in another safe country – will be considered inadmissible to the asylum system, consistent with the Refugee Convention”.

There will be a “rebuttable presumption” that people can be returned to EU and other developed countries, and sections 77 and 78 of the Nationality, Immigration and Asylum Act 2002 amended so that people can be removed despite having a pending asylum claim or appeal. This is all academic given that punting asylum seekers to other countries is admitted to be “contingent on securing returns agreements”, which do not exist (but will be pursued).

So instead, people in this position will be punished with a new “temporary protection status” instead of refugee status. This is for people with inadmissible claims, and who cannot be returned, and:

did not come to the UK directly,

did not claim without delay, or

did not show good cause for their illegal presence.

Temporary protection will be a grant of permission to remain in the UK for no longer than 30 months, with no recourse to public funds and “restricted” family reunion rights. They would also be “regularly reassessed for removal from the UK” (a policy that already exists, at least on paper).

There will be an increase in the maximum sentence for entering the UK illegally. The maximum currently is six months, but the document does not say what this would change to. The separate “facilitation” offence of assisting unlawful immigration will now attract a maximum of life in prison, up from 14 years (in reality the average sentence handed down is three and a bit years).

There follow a range of other measures which will affect all asylum seekers, not just those said to have “jumped the queue”.

Other asylum measures

Changes to substantive law

There are to be changes to the legal test for whether someone has a “well-founded fear of persecution”, subject to consultation and the Refugee Convention.
People will first have to prove on the balance of probabilities that “they are who they say they are and that they are experiencing genuine fear of persecution”. There will then be consideration of “whether the claimant is likely to face persecution if they return to their country of origin”. This would have to be established on the lower standard of proof of “reasonable likelihood”.

This effectively rolls back the law to the 1990s, before the courts held in a series of cases that having such a split standard of proof was impractical, overly complex and generally stupid. Quite why this zombie issue of refugee law is now shaking the grave dirt from its boots is anyone’s guess, although presumably the Home Office thinks that it will make it hard for asylum claims to succeed.

There will also be a statutory definition of “persecution”, in line with the Refugee Convention.
Asylum appeals and judicial reviews

There will be a “Good Faith Requirement” for appeals. “Anyone bringing a claim or a challenge in the courts and their representatives will be required to act in good faith at all times”. This is so nebulous as to defy commentary.

Also a “new ‘one-stop’ process” to incentive people to raise all asylum or human rights issues up front:

People who claim for any form of protection will be issued with a ‘one-stop’ notice, requiring them to bring forward all relevant matters in one go at the start of the process.

It may be that this is different from the existing one-stop process, if the word “will” indicates that notices will be mandatory rather than discretionary. Caseworkers and judges will be told to give “minimal weight” to evidence introduced later in the process, “unless there is good reason”.

There is one paragraph on bringing back some form of fast-track asylum appeals, but no details. Clearly there are no fresh ideas on how to get such an affront to justice past the judges.

On the judicial review front, the Home Office is “considering” (so presumably will consult on) making people who lose JRs pay some of the government’s costs. Tribunal judges may also get additional powers to make wasted costs orders “in response to specified events or behaviours, including failure to follow the directions of the court, or promoting a case that is bound to fail”.

Also under consideration is requiring medical and other experts to be drawn from a state-approved panel. This is, I kid you not, with a view to “putting the independence of the experts beyond question”.

Removals

Also in the mix are some bits and pieces on removing people from the UK. Perhaps the most eye-catching is an attempt to blackmail other countries into taking their citizens back:

We also expect our international partners to work with us on facilitating the return of their own nationals back to their country where those nationals have no lawful right to remain in the UK. We will seek to use the range of levers we have to improve returns co-operation, including considering whether to more carefully control visa availability where a country does not co-operate with receiving their own nationals who have no right to be in the UK.

This will go down extremely well at the Foreign Office.

Existing powers to remove asylum support from people who fail to comply with attempts to remove them will be enforced (no doubt triggering a wave of human rights challenges).

The scheme under which someone can be let out of jail early if they leave the UK will be adjusted. The early release window will be increased from 9 months to 12 months at the end of the sentence, subject to the person serving out at least 25% of their overall sentence.

Finally, the maximum sentence for a foreign national offender who returns to the UK in breach of a deportation order will be increased from six months to five years. This will of course have the effect of keeping such people in the country for longer when the whole point is to get rid of them.

Trafficking and slavery

Too many people are the victims of human trafficking and it is a pain, so there will be changes to keep more people out of the support system.

There will be a consultation on a “public order exemption” so that people with a criminal sentence of 12 months or more can be denied access to the National Referral Mechanism and the associated protections, even if there are reasonable grounds to suspect that they are a trafficking victim.

The legal test for issuing a reasonable grounds decision may change from “reasonable grounds to believe that a person may be a victim” to “reasonable grounds to believe that a person is a victim”. Likewise the wording of the associated guidance could be tightened. These measures too will be consulted on.

On the plus side, there are various improvements to the system promised, including legislation to give confirmed victims an entitlement to temporary permission to remain.

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